PROTECTING MINORITY VOTERS 2014 OUR WORK IS NOT DONE

A REPORT BY THE NATIONAL COMMISSION ON VOTING RIGHTS Disclaimer The opinions expressed in this report are those of the National Commission on Voting Rights and do not necessarily reflect those of NCVR sponsors or supporters.

© 2014 by Lawyers’ Committee for Civil Rights Under Law All rights reserved.

Lawyers’ Committee for Civil Rights Under Law 1401 New York Avenue, NW, Suite 400 Washington, D.C. 20005 202-662-8600 http://www.lawyerscommittee.org/

Report Design by SW Creatives, LLC PROTECTING MINORITY VOTERS 2014 OUR WORK IS NOT DONE

A REPORT BY THE NATIONAL COMMISSION ON VOTING RIGHTS oting Rights Shelby County v. Holder Shelby County v.

otected Groups oting Discrimination, 1995-2014 oting Discrimination, ound: The Voting Rights Act of 1965 ound: The Voting eviations ables and Line Graphs oting Discrimination, 1995-2014: Access to the Ballot oting Discrimination, 1995-2014: Access oting Discrimination, 1995-2014: Minority Vote Dilution Vote oting Discrimination, 1995-2014: Minority I. Introduction Drives Registration II. Community Voter at Public Assistance Agencies Expands Access for Minority Registration III. Voter Voters of Citizenship Proof IV. Purges Voter V. VI. Felony Disenfranchisement ID VII. Voter VIII. Early In-Person Voting at Polling Places IX. Problems Challenges and Voter Intimidation X. Voter I. African Americans II. Latinos III. Native Americans Asian Americans IV. I. Introduction and Its Ongoing Prevalence II. Racially Polarized Voting of Election and Related Practices Dilute III. At-Large and Multi-member Methods Strength Minorities’ Voting Redistricting Plans IV. Acknowledgements Chapter 1: Backgr Overview of V Chapter 2: National Been Lost as a Result of Chapter 3: What Has of Discrimination on Pr Chapter 4: Impact Chapter 7: Language Assistance for Limited English-Speaking Citizens Conclusion Endnotes Appendix A: Abbr Appendix B: Maps Appendix C: T Chapter 6: V Chapter 5: V National Commissioners of the National Commission on V of the National Commission National Commissioners Executive Summary

250 190 208 210 236 238 134 102 54 68 III 1 6 22 40 CONTENTS

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE II CONTENTS NATIONAL COMMISSION ON VOTING RIGHTS PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE NATIONAL COMMISSION ON VOTING RIGHTS

III ACKNOWLEDGEMENTS Fund People Colored National Council on Independent Living Rock the Vote State Voices Arizona Students Association Council of Arizona, Inc. Inter Tribal Voters League of Women Mexican American Legal Defense and Educational National Action Network National Association for the Advancement of One Arizona League of Women Voters Voters League of Women Voters League of Young National Action Network National Association of Latino Elected Officials National Coalition on Black Civic Participation of American Indians National Congress National Disability Rights Network National Urban League Rainbow Push Congress of Black Women Congress Fund Rights Arizona American Civil Liberties Union Arizona Arizona Advocacy Network Arizona State College of Law Indian Legal Clinic Alabama State Conference of the NAACP Alabama State Conference of Black Women National Congress Chapter National YLK Birmingham-Metro NCVR HEARINGS: AND LOCALSPONSORS STATE Alabama OTHER SUPPORTING NATIONAL ORGANIZATIONS: NATIONAL SUPPORTING OTHER AFL-CIO Demos Mi Familia Vota National Council of La Raza NCVR NATIONAL ORGANIZATIONS STEERING ORGANIZATIONS COMMITTEE: NATIONAL NCVR American Civil Liberties Union Asian Americans Advancing Justice | AAJC Asian American Legal Defense and Education Center for Justice Brennan Campaign Legal Center Common Cause Democracy Initiative Inc. NAACP Legal Defense and Educational Fund, on Civil and Human Leadership Conference NCVR SPECIAL NATIONAL PARTNER: PARTNER: NATIONAL SPECIAL NCVR in all of which participated an exceptional partner, particular thanks to the NAACP, THE NCVR extends its 25 hearings. ACKNOWLEDGEMENTS The National Commission Rights on Voting and its staff and the Lawyers’ Committeefor Civil Rights Under Law are grateful the to many people without whom been the would have not work Commission’s accomplished. Georgia of Law Under Law Student Chapter American Civil Liberties Union of Iowa American Civil Liberties Union of Kansas American Civil Liberties Union of Missouri American Civil Liberties Union of Nebraska Georgia American Civil Liberties Union American Civil Liberties Union of Georgia African American Ministers in Action Inc. of Asian American Legal Advocacy Center, Georgia Advocacy Office, Inc. Georgia Association of Latino Elected Officials Georgia Coalition for the Peoples’ Agenda of the NAACP Georgia State Conference of Georgia Voters League of Women National Action Network ProGeorgia Emory University School Sarah Shalf, Professor, Illinois Chicago Lawyers’ Committee for Civil Rights Kansas City Regional (Kansas, Iowa, Missouri and Nebraska) Center for Independent Living of South Florida Independent Living Center for Common Cause Disability Rights Florida Florida New Majority NAACP of the Florida State Conference LatinoJustice PRLDEF of Florida Voters League of Women Women National Council of Jewish University of Miami National Lawyers Guild, SEIU Florida Rights Coalition of Palm Beach County Voting Rights Coalition of South Florida Voting University of Miami Student Chapter Under Law Older People Committee Older People. Fund Francisco Bay Area People Colored Appointed Officials Educational Fund Local Government Law Florida Advancement Project American Civil Liberties Union of Florida American Civil Liberties Union of Florida, Denver Regional (Colorado and New Denver Regional (Colorado and Mexico) Colorado Lawyers’ Committee for Civil Rights Colorado Common Cause Common Cause New Mexico The Legal Center for People with Disabilities and of the Colorado Lawyers Force Elections Task University of Denver Sturm College of Law, The Legal Center for People with Disabilities and California Union of CaliforniaAmerican Civil Liberties Justice – Los Angeles Asian Americans Advancing California Cause Common California Legal Assistance Foundation Rural NAACP California-Hawaii State Conference Disability Rights California Huerta Foundation Dolores Defense and Educational Mexican American Legal San Lawyers’ Committee for Civil Rights of the National Action Network of National Association for the Advancement National Association of Latino Elected and Institute The Greenlining Center for State and UC Hasting College of Law,

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE IV ACKNOWLEDGEMENTS NATIONAL COMMISSION ON VOTING RIGHTS PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE V ACKNOWLEDGEMENTS NATIONAL COMMISSION ON VOTING RIGHTS Foundation Center Third Circuit Court of Appeal; Honorary Lifetime Court of Appeal; Honorary Circuit Third for Civil Rights Lawyers’ Committee Trustee, Under Law Minneapolis Regional (Minnesota Minneapolis Regional (Minnesota and Wisconsin) American Civil Liberties Union of Wisconsin People with Development Disabilities for Board Citizens for Election Integrity Minnesota Common Cause Minnesota Disability Rights Wisconsin Minnesota FairVote Minnesota Voters League of Women Wisconsin Voters League of Women Mid-Minnesota Legal Aid/Minnesota Disability Law Milwaukee NAACP Group Research Minnesota Public Interest Minnesota State Voice One Wisconsin Institute One Wisconsin Now St. Paul NAACP Action Minnesota Take de la Frontera Voces Michigan Michigan Vote- APAI Common Cause Michigan Bar Association D. Augustus Straker of the NAACP Branch Detroit of Michigan Voters League of Women Michigan Department of Civil Rights Michigan Election Reform Alliance of the NAACP Michigan State Conference National Action Network Sierra Club Michigan Hon. Gene Thibodeaux, Chief Judge, Louisiana Thibodeaux, Chief Hon. Gene of Directors, Lawyers’ Committee for Civil of Directors, Rights Under Law Colored People Colored ACLU of Louisiana Advocacy Center Delgado Community College Foundation for Louisiana Gulf Coast Center for Law & Policy Louisiana Justice Institute NAACP Louisiana State Conference Louisiana One Voice Puentes New Orleans, Inc. New Orleans Urban League of Greater Phelps Dunbar LLP; Board Kim M. Boyle, Partner, Jennifer Coco Jacques Morial of Southern University Law Center John Pierre Bill Quigley of Loyola Law School Louisiana Common Cause Nebraska Common Cause of Kansas Disability Rights Center Disability Rights Iowa Disability Rights Nebraska Iowa Citizen Action Network Latino American Commission Latinos Unidos of Iowa of Iowa Voters League of Women of Kansas Voters League of Women LULAC of Iowa of National Association for the Advancement NAACP Kansas State Conference NAACP Iowa-Nebraska State Conference National Action Network National Lawyers Guild of Kansas City Nebraska Appleseed Nebraskans for Civic Reform Sunflower Community Action of Law University of Missouri-Kansas City School Redistricting and Democracy Fund Evers College, CUNY Economic Justice New York City Regional (Connecticut, New York City Regional (Connecticut, New Jersey, and New York) American Civil Liberties Union of New Jersey Asian American Community Coalition on Asian American Legal Defense and Education Center for Justice at NYU School of Law Brennan Center for Law and Social Justice at Medgar Common Cause New York of the NAACP Connecticut State Conference Demos Rights Advocates for Voter Fordham Hispanic Federation Latino Justice PRLDEF MinKwon Center for Community Action NAACP NAACP Legal Defense Fund NALEO Educational Fund of the NAACP New Jersey State Conference of the NAACP State Conference New York Boston Regional (Maine, Regional (Maine, Boston New Hampshire, Massachusetts, Vermont) Rhode Island, and Union of Massachusetts American Civil Liberties Common Cause Massachusetts Demos for Civil Rights and Lawyers’ Committee of Massachusetts Voters League of Women MassVote MIRA Coalition of the NAACP Conference New England Area Massachusetts Progressive Springfield Institute Suffolk University Government Department Suffolk University Law School Urban League of Eastern Massachusetts Sorority Inc. Inc. Sorority Las Vegas Regional (Nevada and Utah) American Civil Liberties Union of Utah Urban League Las Vegas of Nevada Voters League of Women Mi Familia Vota NAACP Fund NAACP National Voter Voters Utah League of Women Nashville Regional (Arkansas, Nashville Regional (Arkansas, and Kentucky, Oklahoma, Tennessee, West Virginia) American Civil Liberties Union of Tennessee Roundtable Black Women’s Kentuckians for the Commonwealth of Tennessee Voters League of Women of Nashville Voters League of Women Nashville Bar Association Theta Nashville Alumnae Chapter of Delta Sigma Citizen Action Tennessee NAACP State Conference Tennessee Urban League of Middle Tennessee Virginia Citizen Action West Baltimore Regional (Delaware, D.C., Regional (Delaware, Baltimore and Maryland) Law School of University of Baltimore Mississippi NAACP of the Mississippi State Conference Union of Mississippi American Civil Liberties Common Cause Mississippi of Mississippi Voters League of Women of Jackson Area Voters League of Women Mississippi Center for Justice Southern Echo Teens Tunica upGrade Mississippi

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE VI ACKNOWLEDGEMENTS NATIONAL COMMISSION ON VOTING RIGHTS PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ACKNOWLEDGEMENTS NATIONAL COMMISSION ON VOTING RIGHTS VII Network Pennsylvania American Civil Liberties Union on Pennsylvania Advancement Project Committee of Seventy Common Cause PA Disability Rights Network of Pennsylvania of Pennsylvania Voters League of Women National Action Network Pennsylvania State Chapter of National Action of the NAACP Pennsylvania State Conference Pennsylvania Voice PennPIRG Law Center of Philadelphia Public Interest Center SeniorLAW Urban League of Philadelphia United Steelworkers Disability Rights Washington Disability Rights Montana Forward Votes Idaho Voices/Idaho of Idaho Voters League of Women of Oregon Voters League of Women of Washington Voters League of Women Voters Montana Conservation Montana Voices NAACP OneAmerica Project Bus Oregon Voice Oregon University of Washington School of Law University of Washington Seattle Urban League of Metropolitan Bus The Washington Western States Center Win/Win Network Foundation Foundation School Seattle Regional (Idaho, Montana, Oregon, and Washington) American Civil Liberties Union of Montana American Civil Liberties Union of Washington APACE Bus Federation Common Cause Oregon Disability Rights Oregon Ohio State Conference of the NAACP Ohio State Conference of the NAACP Indiana State Conference Advocates for Basic Legal Equality Elections (CASE-OH) Citizens Alliance for Secure Common Cause Ohio of Ohio Voters League of Women Fund NAACP National Voter Advocates Northeast Ohio Voter Ohio AFL-CIO Ohio Unity Coalition Ohio Voice Columbus Regional (Ohio and Indiana) American Civil Liberties Union of North Carolina American Civil Liberties Advancement Project Democracy North Carolina Moral Movement Together Forward Assembly HKonJ People’s NAACP North Carolina Southern Coalition for Social Justice UNC Center for Civil Rights North Carolina OCA-NY Asian Pacific American Advocates Pacific American OCA-NY Asian Law Center at Fordham Resource Public Interest YWCA of Queens Director, Arizona State University College of Director, Law Indian Legal Clinic NAACP of Law Arizona Academic Affairs and Professor Summit Law School School of Law American Civil Liberties Union of Virginia Campus Election Engagement Project The disAbility Law Center of Virginia Fair Elections Legal Network Project Hollaback and Restore Education Fund VA Progress Vote Project One Virginia 2021 for Independent Living, Inc. Resources Sierra Club-Virginia Chapter The Urban League of Hampton Roads, Inc. Virginia New Majority of the NAACP Virginia State Conference Virginia AFL-CIO Virginia Organizing Arizona National Commissioner Patty Ferguson-Bohnee, Charles Fanniel, Arizona State Conference Hon. Penny Ladell-Willrich, Associate Dean of Virginia Austin Black Lawyers Association Austin Black Inc. Legal and Social Policy, Earl Carl Institute for Urban League, Inc. Houston Area Association Legal J.L. Turner NAACP Houston Branch and Educational Fund, Inc. NAACP Legal Defense NAACP Region VI National Bar Association Houston Chapter OCA Greater Southern Thurgood Marshall University - Texas of the NAACP State Conference Texas Birmingham Ministries Democratic Conference Chapter, Inc. Chapter, Disabilities, Inc. NCVR HEARING GUEST COMMISSIONERS HEARING GUEST NCVR Alabama Greater Scott Douglas, Executive Director, Alabama Field Director, retired Gray, Jerome Gift Corps; Attorney Founder, Loder, Lee W. Alabama NAACP Simelton, President, Bernard Texas 100 Black Men of America, Houston Metropolitan South Carolina American Civil Liberties Union of South Carolina The Columbia Urban League The Family Unit of South Carolina Voters League of Women NAACP Legal Defense & Ediucation Fund National Action Network and Advocacy for People with Protection Network Progressive South Carolina of the NAACP State Conference South Carolina Rapid City Regional (Montana, North Regional (Montana, Rapid City and Wyoming) Dakota, South Dakota, Union of Montana American Civil Liberties Union of North Dakota American Civil Liberties Union of South Dakota American Civil Liberties Union of Wyoming American Civil Liberties Inc. Four Directions, Montana Voice Project & Advocacy North Dakota Protection Network North Dakota Women’s Western Native Voice South Dakota Coalition of Citizens with Disabilities Disability Rights North Dakota Heather Dawn Thompson

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ACKNOWLEDGEMENTS

NATIONAL COMMISSION ON VOTING RIGHTS VIII PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ACKNOWLEDGEMENTS NATIONAL COMMISSION ON VOTING RIGHTS IX Chair of the National Board of Directors, of Directors, Chair of the National Board NAACP former State Senator Schachter & Greenberg; and Representative Foundation Research for the Peoples’ Agenda Rights Project Emeritus, ACLU Voting Advocacy Office P.C. Committee for Civil Rights Under Law Committee for Civil Rights Under Law Colorado Montana Wyoming State Area Colorado Montana Wyoming State Area Conference Court (Ret.); Professor of Law Emeritus, U.C. of Law Emeritus, Court (Ret.); Professor Davis School of Law National Commissioner Leon W. Russell, Vice Russell, National Commissioner Leon W. Gelber, founding partner, Hon. Dan Gelber, LLP Duane Morris partner, Lisa Rodriguez-Taseff, University of Florida A. Smith, Professor, Daniel Dr. Georgia Georgia Coalition Executive Director, Helen Butler, Georgia NAACP Francys Johnson, President, Dr. Laughlin McDonald, Special Counsel and Director Georgia Executive Director, Ruby Moore, Illinois Barnhill & Galland, Miner, Ben Blustein, Partner, Chief Counsel, Lawyers’ Jon Greenbaum, Chicago Lawyers’ Marissa Liebling, Staff Attorney, Denver Regional (Colorado and New Denver Regional Mexico) of New Mexico Lonna Atkeson, University Dr. New Mexico State Senator, Dede Feldman, former NAACP President, Rosemary Harris Lytle, Zakhem Law Firm John Zakhem, President, Florida State Cruz Reynoso, Justice of California Supreme Justice of CaliforniaCruz Reynoso, Supreme of the Dolores Huerta Foundation of the Dolores Common Cause Assistant Attorney General for Civil Rights under Bush George H. W. President Suffolk University Government Department Committee for Civil Rights and Economic Justice League of Eastern Massachusetts Demos School of Law Lawyers’ Committee for Civil Co-Director, Rights Under Law NAACP State NAACP State University California Huerta, President National Commissioner Dolores California Kathay Feng, Executive Director, California NAACP Alice A. Huffman, President, Boston Regional (Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont) National Commissioner John Dunne, former and Chair, Rachael Cobb, Associate Professor Lawyers’ Rahsaan Hall, Deputy Director, Darnell Williams, and CEO, Urban President of Legal Strategies, Vice President Wright, Brenda Gilda Daniels, Professor, University of Baltimore of Baltimore University Gilda Daniels, Professor, League Henderson, The Urban J. Howard Rights Project Voting Johnson-Blanco, Marcia Kim Keenan, General Counsel and Secretary, Maryland Political Action Chair, Yeary, Todd Rev. Baltimore Regional (Delaware, D.C., Baltimore Regional and Maryland) John R. Lewis, Inter Tribal Council of Arizona, Inc. Council of Inter Tribal John R. Lewis, Arizona Emeritus, Professor Doris Marie Provine, Chair of the National Board of Directors, of Directors, Chair of the National Board NAACP of the NAACP Conference Rhodes Deborah McDonald Justice of the NAACP Conference National Coalition of Black Civic Participation Middle Tennessee NAACP Director, League of Young Voters League of Young Director, Minnesota and Whitney Dorsey Minnesota; former Partner, LLP University of Minnesota National Commissioner Leon W. Russell, Vice Russell, National Commissioner Leon W. Mississippi State Derrick Johnson, President, the Law Office of Carroll Attorney, Rhodes, Carroll Office of the Law Deborah McDonald, Attorney, Mississippi Center for Reilly Morse, President, Nashville Regional (Arkansas, Kentucky, Oklahoma, Tennessee, and West Virginia) Kentucky State Raoul Cunningham, President, Attorney Austin Porter, Roundtable, Black Women’s Lottie Shackleford, Urban League of Patricia Stokes, President, Branch County Bolivar-Hardeman Woods, Monroe Minneapolis Regional (Minnesota Regional (Minnesota Minneapolis and Wisconsin) Executive Biko Baker, National Commissioner University of R. Jacobs, Professor, Lawrence of State Secretary Mark Ritchie, Minnesota Spannaus, former Attorney General of Warren Emeritus, Regent Moore, Weekes Wenda Mississippi School of Law Appeals School Court Rights Project, Lawyers’ Committee for Civil Rights Project, Rights Under Law University of New of History, Professor-Emeritus Orleans New Orleans of Greater NAACP Justice Institute Women Voters, Illinois Voters, Women University of Nebraska Conference Court and Attorney at Law Supreme Jocelyn Benson, Dean, Wayne State University State University Jocelyn Benson, Dean, Wayne Judge, Michigan Court of Hood, retired Harold University of Michigan Law Ellen Katz, Professor, Justice, Michigan Supreme retired Marilyn Kelly, Michigan Louisiana Voting Co-Director, Johnson-Blanco, Marcia Seraphia D. Leyda Jr., Cassimere, Raphael Dr. & CEO, Urban League Erika McConduit, President Conference Louisiana State Chipps Taylor, Rev. & CEO, Louisiana President L. Washington, Tracie Mary Schaafsma, Executive Director, League of League of Executive Director, Mary Schaafsma, (Kansas, Iowa, Kansas City Regional Missouri, and Nebraska) County Missouri Noran, Clerk, Boone Wendy Counseling Psychologist, (ret.) Marty Ramirez, NAACP State Missouri Mary Ratliff, President, University Washburn of Law, Bill Rich, Professor Chief Justice of the Iowa (ret.) Marsha Ternus,

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE X ACKNOWLEDGEMENTS NATIONAL COMMISSION ON VOTING RIGHTS PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ACKNOWLEDGEMENTS NATIONAL COMMISSION ON VOTING RIGHTS XI Director, Arizona State University College of Director, Law Indian Legal Clinic Secretary of State Secretary Court of Common Pleas Pennsylvania NAACP Urban League of Chief Operations Officer, Philadelphia Huerta Foundation of the Dolores Redistricting Commission Leadership Conference on Civil and Human on Civil Leadership Conference Conference Rights and the Leadership Education Fund the Sixth Circuit Court of Appeals for Law Lawyers’ Committee for Civil Rights Under Voters League of Women Chair, Voters; Women Education Fund Rapid City Regional (Montana, North Dakota, South Dakota, and Wyoming) National Commissioner Patty Ferguson-Bohnee, Pennsylvania A. Cortes, former Pennsylvania Hon. Pedro Hon. Nelson A. Diaz, former Judge, Philadelphia President, J. “Jerry” Whyatt Mondesire, and Regine Matellus, Senior Vice President Seattle Regional (Idaho, Montana, Oregon, and Washington) Huerta, President National Commissioner Dolores Principal, Burkholder Consulting Rex Burkholder, State Washington Commissioner, Dean Foster, NAACP Hon. Charles Johnson (ret.), Columbus Regional (Ohio and Regional (Ohio Columbus Indiana) and CEO, President C. Henderson, Wade Judge, U.S. attorney;Hon. Nathaniel Jones, ret. Co-Director, Project Rights Bob Kengle, Voting League of Elizabeth MacNamara, President, Ohio NAACP Sybil McNabb, President, Assistant Attorney Rights under General for Civil Bush George H. W. President LatinoJustice PRLDEF Newark, former New Jersey Public Advocate State Conference Director, Lawyers’ Committee for Civil Rights Director, Under Law Department of Justice LLP and former Dean, North and Scarborough, Central University School of Law Carolina State Conference Division Alliance Pacific American Labor Justice Court Township Vegas New York City Regional (Connecticut, New York City Regional (Connecticut, New Jersey, and New York) National Commissioner John Dunne, former & General Counsel, Juan Cartagena, President Ron Chen, Acting Dean, Rutgers Law School- NAACP New York Hazel Dukes, President, Dr. Law School John Feerick, Former Dean, Fordham AALDEF Fung, Executive Director, Margaret North Carolina and Executive Barbara Arnwine, President Eva Clayton, former Congresswoman U.S. formerly of the David Harris, attorney, former state Senator Ellie Kinnaird, Nelson Mullins Riley Partner, Raymond Pierce, Jeanetta Williams, President, ID-NV-UT NAACP Jeanetta Williams, ID-NV-UT President, Rights AFL-CIO Civil Director, Carmen Berkley, Asian Director, Cendana, Executive Gregory Las Chief Judge, Bennett-Haron, Hon. Karen Las Vegas Regional (Nevada and Regional (Nevada Las Vegas Utah) Member, OCA-Asian Pacific American OCA-Asian Pacific Member, Advocates School of Law NAACP Texas Political Action Director, NAACP, State Conference Association Roads ACLU of Virginia of Elections Virginia State Board Orleans, LA MI Detroit, MD School, Baltimore, Law School, Minneapolis, MN Jackson, MS Nashville, TN NV Las Vegas, Center, Boston, MA Texas & Board Treasurer Deborah Chen, National Marshall Thurgood Craig Jackson, Professor, Member, Board Jefferson, National Howard National Bar Vice President, J. Goodwille Pierre, Virginia Thursa Crittenden, Urban League of Hampton Gastanaga, Executive Director, Guthrie Claire Jean Jensen, former Deputy and Secretary, Virginia NAACP President, Carmen Taylor, Louisiana: Delgado Community College, New Louisiana: Delgado Community College, State University Law School, Michigan: Wayne Law Regional: University of Baltimore Baltimore Minneapolis Regional: University of Minnesota Mississippi: Mississippi College School of Law, Bethel AME Church, Nashville Regional: Greater Regional: Clark County Government Las Vegas Boston Regional: Suffolk University Law School, Birmingham, AL AZ Tempe, San Francisco, CA of Law, CO Denver, College of Law, Administration, Coral Gables, FL Nonviolent Social Change, Atlanta, GA IL MO Kansas City, Kansas City School of Law, Dakota College of Arts & Sciences Dakota College of Arts Association Chairman’s Tribal Computer Science and Engineering, University of South Carolina Court Supreme Carolina Columbia Urban League NAACP Carolina NCVR HEARING HOSTS AND VENUES: AND HEARING HOSTS NCVR Alabama: St. Paul United Methodist Church, of Law, Arizona: Arizona State University College California: University of California Hastings College Sturm Denver Regional: University of Denver, Florida: University of Miami School of Business Center for Georgia: The Martin Luther King, Jr. Chicago, Illinois: DePaul University College of Law, Kansas City Regional: University of Missouri- Richard Braunstein, Professor, University of South University of South Braunstein, Professor, Richard Action Indian People’s Michaelynn Hawk, Director, Plains Great Director, A. Gay Kingman, Executive South Carolina Foster Law Firm Nancy Bloodgood, Partner, Duncan Buell, Chair of the Department of Justice, South retired Jr., Hon. Ernest A. Finney, CEO, and President McLawhorn, Jr., James T. South President, Randolph, Jr., Lonnie Dr.

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ACKNOWLEDGEMENTS

NATIONAL COMMISSION ON VOTING RIGHTS XII PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ACKNOWLEDGEMENTS NATIONAL COMMISSION ON VOTING RIGHTS XIII City, SD City, SC Chambers, Columbia, Houston, TX Richmond, VA Minneapolis Regional (Minnesota and Wisconsin) Dorsey & Whitney LLP Deakins Nash Smoak & Stewart, P.C. Ogletree Perkins Coie LLP Georgia King & Spalding & Stockton LLP Kilpatrick Townsend Illinois Kirkland & Ellis LLP Minner Barnhill & Galland, P.C. Michigan Clark Hill PLC P.C. Weiss, Jaffe Raitt Heur & Arizona Student Association (AZ) Communication Access (CA) Bay Area Center for State and Local Government Law (CA) Community Services (CA) Street Dolores Paul Eckstein (AZ) James Irvine Foundation (CA) Hon. Bernette J. Johnson (LA) (CA) Morrison and Forester Hon. Ulysses G. Thibodeaux (LA) (CA) Transperfect Rapid City Regional: JourneyRapid City Museum, Rapid Council Richland County South Carolina: Marshall School of Law, Thurgood Texas: Virginia: Virginia University, Commonwealth

School of Law, New York, NY New York, School of Law, NC Rocky Mountain, Center, School, Seattle, WA Philadelphia, PA Ballard Spahr LLP Ballard The Sweetser Law Firm, P.C. of the Fund. The opinions and views Rockefeller Brothers the was made possible with support from *This report those of the Fund. authors do not necessarily state or reflect Denver Regional (Colorado and New Mexico) California Altshuler Berzon LLP Boies, Schiller & Flexner LLP & Ho Goldstein, Borgen, Dardarian Mannatt, Phelps & Phillips, LLP Morrison & Foerster LLP O’Melveny & Myers LLP LAW FIRM SUPPORT Arizona Perkins Coie LLP Sacks Tierney P.A. Ford Foundation Ford Open Society Foundations MacArthur Foundation John D. and Catherine T. Lisa and Douglas Goldman Fund Projects Public Interest Fund* Rockefeller Brothers Agua Fund Community Foundation (CA) Silicon Valley Access Strategies Fund (New England) Arizona Center for Disability Law (AZ) FOUNDATION & OTHER SUPPORTERS OTHER & FOUNDATION New York City Regional: Fordham University Regional: Fordham City New York Opportunities Industrialization North Carolina: Columbus, OH Riffe Center, Columbus Regional: Law of Washington Seattle Regional: University Constitution Center, Pennsylvania: National Commission on Voting Rights Commission on Voting Rapid City Regional (Montana, North Rapid City Regional and Wyoming) Dakota, South Dakota, & Stockton LLP Kilpatrick Townsend Fox Rothschild LLP Fox Rothschild McKeever & Mitchell & Lewis LLP Schnader Harrison Segal Alan Martinson, Counsel Lindsey Needham, Legal Assistant Senior Counsel Eileen O’Connor, National Maria Peralta, National Coordinator, Senior Special Counsel Mark Posner, Counsel Reyes, Alejandro Dorian Spence, Associate Counsel Erandi Zamora, Associate Counsel Mobilization LAWYERS’COMMITTEE INTERNS Colleen Roberts, Roseann Romano, Tharuni Jayaraman, Anne Swift, Bradley Silverman, Chike Croslin, Cole Laura Hunt, Tyler Brown, Trinity WRITER: REPORT Wang Tova LAW FIRM RESEARCH SUPPORT: & Moring LLP; Dechert LLP; Dorsey & Whitney Burt; Crowell LLP; Carlton Fields Jorden Spahr Ballard LLP; Ogletree, & Stockton Kilpatrick Townsend LLP; Kirkland & Ellis LLP; Kilpatrick & Buchalter; Rose LLP; Simpson Thatcher & Bartlett LLP Proskauer Deakins, Nash, Smoak & Stewart, P.C.; LAWYERS’ COMMITTEE STAFF: Bob Chief Counsel/ Senior Deputy Director; Jon Greenbaum, Barbara Arnwine, Executive Director; VRP; Nancy Johnson-Blanco, Co-Director, (VRP); Marcia Rights Project Voting Kengle, Co-Director, Bono Project; and Pro Legal Mobilization Project Anderson, Director Rebecca Arnold, Associate Counsel Rosemarie Clouston, National Coordinator Aunna Dennis, National Coordinator Miles Fernandez, Assistant Coordinator Manager Legal Chris Fields Figueredo, Maddy Finucane, Legal Assistant Megan Gall, Social Science Analyst Counsel Rights Project Sonia Gill, Voting Horton, Counsel Meredith New York City Regional (Connecticut, (Connecticut, City Regional New York New York) New Jersey, and LLP Davis Polk & Wardwell Kirkland & Ellis LLP Pennsylvania Spahr LLP Ballard

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NATIONAL COMMISSION ON VOTING RIGHTS XIV PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE 1 NATIONAL COMMISSIONERS NATIONAL COMMISSION ON VOTING RIGHTS Executive Director of League of Young Voters Executive Director of League of Young and National Leader in Youth Civil Engagement Programs of the Rob “Biko” Baker is the Executive Director and a nationally-recognized Voters, League of Young Baker is a Mr. Based in Milwaukee, youth leader. voter turnoutpioneer in running city-level, data-driven the voter partici- campaigns that dramatically increase voice on field pation of young urban citizens. A leading voters, campaigns targeting young African American

Baker serves on CIRCLE’s research advisory board and is a board member of the New member and is a board advisory board research Baker serves on CIRCLE’s elections, as well as cul- known communicator around Organizing Institute. He is also a well to being a former tural and political issues including gun violence and voting rights. In addition Fox News and CNN. A popular and on C-SPAN, he has appeared contributor to The Source, Baker has interviewed luminaries Cornel and events, Mr. powerful speaker at conferences Dean, and has been on panels with many of the na- Simmons, and Howard Russell West, UCLA. voices. Baker holds a Ph.D. in History from progressive strongest tion’s Biko Baker Biko NATIONAL COMMISSIONERS OF COMMISSIONERS NATIONAL ON COMMISSION THE NATIONAL RIGHTS VOTING - have the following distinguished lead to is proud Rights on Voting The National Commission Huerta; Law Professor Dolores Commissioners: Social justice leader, ers serving as National ASU, School of Law, Clinic at the Sandra Day O’ Connor of the Indian Law and Director Leon Russell; Youth Vice Civil Rights Leader and NAACP Patty Ferguson-Bohnee; Chair, Baker; and former Assistant Attorney Biko for Civil Rights, John General Engagement Leader, Dunne.

Faculty Director, Indian Legal Program Director, Indian Legal Clinic Clinical Professor of Law Sandra Day O’Connor School of Law, Arizona State University Patty Ferguson-Bohnee has substantial experience election law and policy matters, voting in Indian law, rights, and status clarification of tribes. She has testified United States Senate Committee on Indian the before - regard Affairs and the Louisiana State Legislature Former Assistant Attorney General for Civil Rights Attorney General for Civil Rights Former Assistant George H. W. Bush under President Osterman & Hanna as Prior to joining Whiteman John Dunne had served in a variety counsel to the Firm, local governmentof federal, state and positions for was the Assistant 1990 to 1993 he thirty years. From Attorney for Civil Rights at the U.S. Department General 1966 to 1989 he was a member of the of Justice. From his local and state State Senate. Throughout New York Long Island, as a service, he actively practiced law on

Patty Ferguson-Bohnee partner in the national law firm of Rivkin, Radler, Dunne & Bayh. Radler, partner in the national law firm of Rivkin, of 1990 until 1993 Dunne, as Assistant Attorney General, headed up the enforcement From his duties, he argued cases in federal appeals courts all federal civil rights laws. As part of Randolph and the John both the Edmund Court. He was awarded and in the U.S. Supreme for distinguished service. Marshal awards Deputy Majority Leader Dunne served at various times as During 24 years as a state senator, insurance and prisons committees. protection, environmental and chair of the judiciary, a number of articles for various law school journals including John Dunne has authored Times, The Washington and St. Louis, the op-ed pages of The New York Hofstra, Fordham Bar Law Journal, York Business Insurance and New and the New York Post, U.S.A. Today Journal. John Dunne ing tribal recognition, and has successfully assisted four Louisiana tribes in obtaining state ing tribal recognition,

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE 2 NATIONAL COMMISSIONERS NATIONAL COMMISSION ON VOTING RIGHTS PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE 3 NATIONAL COMMISSIONERS NATIONAL COMMISSION ON VOTING RIGHTS

Founder and President of the Dolores Huerta Founder and President of the Dolores Foundation and Social Justice Activist Huerta of the Dolores As founder and president the Huerta travels across Foundation, Dolores influencingcountry engaging in campaigns and defendslegislation that supports equality and andcivil rights. She often speaks to students and publicorganizations about issues of social justice Huerta Foundation is a not-for- The Dolores policy. at the community organization that organizes profit

Dolores Huerta Huerta Foundation leaders. The Dolores level, engaging and developing natural grassroots opportunities for community organizing, leadership development, civic leadership creates health and environment, engagement, and policy advocacy in the following priority areas: education and youth development, and economic development. the National Ms. Huerta is a life-long labor leader and civil rights activist who co-founded She has received Farmworkers Association, which later became the United Farmworkers. for workers’, immigrants’, and for her community service and advocacy awards numerous the Debs Foundation Outstanding American Award, rights, including the Eugene V. women’s for Human Rights, and the Presidential Eleanor Roosevelt Award United States Presidential Obama in 2012. to her by President presented Medal of Freedom recognition. Professor Ferguson-Bohnee has represented tribal clients in administrative, state, administrative, in clients tribal represented has Ferguson-Bohnee Professor recognition. state and local governing and proposed bodies as well as before federal, and tribal courts, She has assisted include tribal provisions. Reports to Disclosure to the Real Estate revisions she has drafted state legislative and rights litigation on behalf of tribes, and in complex voting to voting rights’ issues. behalf of tribes with respect testimony on congressional of the 9th U.S. Circuit clerked for Judge Betty Binns Fletcher Ferguson-Bohnee Professor Relations Practice Group and Tribal was an associate in the Indian Law Court of Appeals and French Scholar to France, she researched in Phoenix. As a Fulbright at Sacks Tierney P.A. Ferguson- 17th and 18th centuries. Professor with Louisiana Indians in the colonial relations Election Indian tribe, serves as the Native Vote Bohnee, a member of the Pointe-au-Chien for the State of Arizona. Coordinator Protection NAACP Vice Chair of the NAACP Vice Chair Directors National Board of serving in January of 2012, after Russell retired Leon W. of Human Rights for Pinellas of the Office as the Director Florida. He had held County Government, Clearwater, of 1977. In this position Mr. this post since January implementing the county’s for Russell was responsible Ordinances. In Affirmative Action and Human Rights Russell was elected President September of 2007, Mr. of the International of Official Human Rights Association

Agencies during its annual meeting in Atlanta, Georgia. The IAOHRA Membership is agencyAgencies during its annual meeting in the United throughout and civil rights agencies from based and consists of statutory human nations. several other from States and Canada as well as representation of Branches of the of the Florida State Conference Russell served as the President Mr. 1996 until January 2000, after serving for fifteen years as the First January NAACP from of the of Directors of the National Board He has served as a member Vice President. and currently secretary as the assistant board NAACP since 1990. He has served that member of the International He is a serves as Vice City Chairman of the National Board. of the National Forum for Black Public Administrators; Management Association; a member of Florida; past Board Campaign of the Children’s of Directors member of the Board of the Member and Board past President Member of the Pinellas Opportunity Council, of the Blueprint Commission on member Workers; National Association of Human Rights the juvenile justice to improve reforms for recommending Juvenile Justice with responsibility system in the state of Florida. FREE Equity and Equality. as the Chairman of Floridians Representing Russell also served Mr. Initiative, an anti- was established as a statewide coalition to oppose the Florida Civil Rights the initiative failed to get Ultimately, Connerly. Ward by proposal authored Affirmative Action legal challenge spearheaded by FREE. on the Florida Ballot, because of the strong Leon Russell Leon

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE 4 NATIONAL COMMISSIONERS NATIONAL COMMISSION ON VOTING RIGHTS PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE 5 NATIONAL COMMISSIONERS NATIONAL COMMISSION ON VOTING RIGHTS - Dolores Huerta, John Dunne, Patty Ferguson Bohnee, Leon Russell, Biko Baker Dolores Huerta, John Dunne, Patty Ferguson Bohnee, Leon Russell, We accepted the invitation to serve as National Commissioners on the National Commission to serve as National Commissioners accepted the invitation We of equal ac- long-standing commitment to the preservation Rights because of our on Voting And we believe or ethnic background. of race all Americans, regardless cess and rights for The National Commission on fundamental of these rights is voting. that one of the most to gut decision Court’s year in the aftermath of the Supreme Rights was convened last Voting longer no were that such protections Rights Act, concluding of the Voting a vital protection defending voting rights in minority us who had been working for years needed. Those of with two charges: the Commission set out Soon afterward, disagreed. communities strongly impacting of voting laws, practices and cases record first, to compile a comprehensive issues; and second, to issue two reports minority voting rights and election administration based on our findings. With national, state and community- based coalition of the support of a broad-based hearings across regional twenty-five state and organizations, the Commission conducted local activists, state and of voters, grassroots hundreds from we heard where the country, Commission The range of issues impacting voters today. advocates, and experts on the wide on behalf of minority brought legal cases as recent also examined state voting laws as well in expanding although we have made significant strides is clear- voters. The amassed record the past but a very real of discrimination is not a relic voting opportunities for all voters, voting that continues to persist in America. problem too many localities lack the franchise. Far kept from Far too many of our constituencies are minorities to elect their candidate of choice or disen district elections that make it easier for voter ID laws that make individuals. Restrictive or formerly incarcerated franchise incarcerated allowing of citizenship before for students and the elderly to vote, demands for proof it harder just and intimidation are tactics voters to cast a ballot, and continued instances of scare some additional examples of the practices that continue to plague of nation. We hope reports. is not Done, is the first of our national Minority Rights: Our Work Protecting the country. across valuable information to voters in communities will provide that this report hope that it will give further evidence for why our nation should continue to provide also We to all voters—including African American, Latino, Asian American, the necessary protections as we as freely American Indian and Alaskan Natives—so that we may all cast our ballots believe was intended in our democracy. Signed, Letter from the National Commissioners from the National Letter

.” to

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U.S. Representative John Lewis Lewis John Representative U.S.

right Georgia’s 5th Congressional District Congressional 5th Georgia’s

is precious, vote is almost “The “The

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE 6 NATIONAL COMMISSIONERS NATIONAL COMMISSION ON VOTING RIGHTS PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE 7 EXECUTIVE SUMMARY NATIONAL COMMISSION ON VOTING RIGHTS - - s use of a EXECUTIVE SUMMARY EXECUTIVE Act of 1965 Rights of the Voting to celebrate the 49th anniversary many reasons are There turbulent and momentous years that since the progress have made enormous (VRA). We total exclusion of minority the VRA. The VRA ended the virtual the enactment of preceded It has also country with the worst voting discrimination. of the in areas voter participation voting prac of thousands of discriminatory use, or blocked implementation, from removed in increased advances, have resulted others, as well as social and cultural tices. This law and and turnout elected officials at and the election of thousands of minority minority registration an African-American President. the federal, state, and local levels, including - racial voting discrimination would be both prema But to congratulate ourselves for ending from majority-minority single-member come and unwise. Most minority elected officials ture a fair opportunity to elect candidates of their choice districts in which minority citizens have such dis- outside elected from white voters; minority candidates despite lack of support from continuing are hearing new legal challenges and Courts are exception. rare the tricts remain A number of states have enacted laws that seem to make findings of voting discrimination. vot- access to the franchise, especially in ways that impact minority intended only to restrict still lags far behind that of white groups than white. Participation for most minority ers more “white” means “white, non-Hispanic”). voters (for purposes of this report also remain voting procedures and burdensome Shortcomings in election administration in the 2000 election, took the national stage The symptoms of these problems widespread. of the U.S. Election Act and the creation Vote the enactment of Help America and prompted 2012 election—with embarrassing election adminis Assistance Commission (EAC). But the and the litigation some jurisdictions, hours-long lines of voters, protracted in tration failures continues to elude us. EAC sidelined by partisan infighting—showed that the cure shocked and perplexed in June 2013 when Given this landscape, many Americans were of Holder, that the 2006 reauthorization Court held, in Shelby County v. the U.S. Supreme decision effectively killed Rights Act was unconstitutional. This of the Voting key provisions one of the most effective antidiscrimination laws ever enacted. Section 5 of the VRA—surely of all new voting practices in nine states and in parts for federal screening Section 5 provided After going into effect, Section had been a history of discrimination. there of six others, where being implemented, and 5 blocked thousands of racially discriminatory voting changes from by a unanimous vote in the Senate and countless others. It had been reauthorized deterred Court do this? by a virtually unanimous vote in the House in 2006. Why did the Supreme that “voting discrimination still exists; no one Chief Justice Roberts wrote In Shelby County, focus on progress that important concession was lost in the Court’s doubts that.” However, the Court’ since 1965 in minority participation and election to public office and in e it is occurring. New problems with voting discrimination are arising even as the old ones persist. Courts with voting discrimination are New problems redistricting plans dilute continue to find that at-large election systems and gerrymandered At the same time, new laws have been enacted, making it more minority voting strength. problematic for minority citizens. register and cast a ballot, which is especially difficult to Discriminatory redistricting plans and at- discrimination takes a variety of forms. Discriminatory redistricting Voting also were there However, the most successful lawsuits. large elections continue to prompt translation to language settlements relating 48 successful lawsuits and ten non-litigation and assistance. has significantly affected African Americans, Latinos, Native discrimination Voting extensive suffered Americans, and Asian Americans. Each of these minority groups have been official voting discrimination in the past. Since 1995, successful lawsuits equal voting discrimination and to provide to remedy behalf of each group on brought electoral opportunities. There were were in the United States. There and ongoing problem discrimination is a frequent Voting 1995 from and denials of Section 5 preclearance 332 successful voting rights lawsuits 2013 and another ten non-litigation settlements. through than others. of voting discrimination of the country have far worse records Some areas high level of documented voting discrimination, stands out as having a remarkably Texas Georgia, Louisiana, Mississippi and South Carolina including multiple state-level violations. the Section 4(b) jurisdictions than average. Overall, each had far higher levels of problems of the than 70 percent population had more of the nation’s 25 percent with approximately successful Section 2 cases.

• • • • • - of voting discrimina compiled that Congress extensive record that avoided the legal analysis between 1982 and 2005. jurisdictions 5 covered tion in the Section a Holder decision demands or not, the Shelby County v. with the Court Whether you agree need to know how much voting discrimination. We racial of recent nationwide assessment and wher is still occurring, who it is affecting voting discrimination Rights—is intended to help on Voting National Commission by the This report—issued that: conclude We answer those questions.

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE 8 EXECUTIVE SUMMARY NATIONAL COMMISSION ON VOTING RIGHTS PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE 9 EXECUTIVE SUMMARY NATIONAL COMMISSION ON VOTING RIGHTS - - OVERVIEW OF CHAPTERS as our country nears the half-century mark after a look in the mirror This Report provides is no doubt that the VRA, including the Section 5 Rights Act. There passage of the Voting effective in combating voting discrimination. has been extraordinarily provision, preclearance any doubt that certain state and local jurisdictions continue to enact discrimina Nor is there tory voting laws. of voting changes in certain states makes it essential to Thus, the loss of federal review voting discrimination. The voting rights of minority of recent closely examine the record too fundamental, and have been denied too often in the past, to accept the as citizens are did away with an unnecessary vestige of a bygone Court merely sumption that the Supreme vot- repeated of recent, era. Section 5 in fact was targeting the states with the worst records ing discrimination when it was neutralized by the Shelby County decision. The Lawyers’ Committee for Civil Rights Under Law along with more than a dozen partners than a dozen with more for Civil Rights Under Law along The Lawyers’ Committee Rights (NCVR), which conducted National Commission on Voting organized the nonpartisan May 2014. The Commission is hearings between June 2013 and and state-based 25 regional an exten- Rights Act, which released National Commission on the Voting a successor to the after 1982. of voting discrimination in 2006 on the record sive report commissioners and additional by a distinguished panel of national The NCVR was overseen hearings covering 48 states. state and regional panels of guest commissioners at the 494 witnesses submitted separately. Hawaii and Alaska were from and research Testimony testified at the hearings. The NCVR set out to learnelection administration about both racial voting discrimination and efforts barriers and reform devoted to election administration issues in its hearings. A report will be issued at a later date. Is Not Done, documents the national Work Our Minority Voters: This Report, Protecting examines the nationwide incidence of of voting discrimination since 1995. The Report record of the VRA, objections under Section 5, and successful successful litigation under Section 2 demographic analysis, and in-depth dis- with testimony, language minority litigation, together testimony was especially helpful in illuminating cussions of important issues. The commission litigation under where is ongoing and highlighting those areas litigation where those areas grave problems. laws has been unable to resolve current THE NATIONAL COMMISSION ON VOTING RIGHTS VOTING ON COMMISSION THE NATIONAL - - tion—and the Act addresses both at least in part. The category of limitations on ballot access both at least in part. The category of limitations on ballot access tion—and the Act addresses for it difficult or make it more prevent consists of laws and practices that disproportionately tests. Minority vote dilution consists of electoral minorities to cast a ballot, such as literacy plan that divides a minority community or the use at-large systems—such as a redistricting with white voters voting as a bloc and other fac (jurisdiction-wide) elections—that, combined electing its candidates of choice. sizable minority community from a tors, prevents in Shelby County, consisted of a system of permanent The Act, prior to its major modification is Section 2, which enables Chief among the permanent provisions and temporary provisions. that the federal government or procedure and private parties to sue to stop a voting practice Section 2 with a racially discriminatory intent or result. was enacted or has been maintained notably complex and resource-intensive. cases are - and observer provi preclearance, language, The primary other types of provisions—minority on jurisdic- because they place affirmative burdens sions—have all been temporary in nature reauthorized most recently Congress voters need the particular protections. tions where in 2006. Section 203 is the primary minority language provision. these temporary provisions (in the case of a political subdivision), ten or five percent where covered Jurisdictions are members of a and are thousand of their voting age citizens have limited English proficiency the English illiteracy rate of those citizens is greater and where single language minority group meets this five percent a Native American reservation than the national illiteracy rate. Where is also satisfied, any jurisdiction containing part or all of and the illiteracy standard threshold political subdivision must provide by Section 203. Covered is also covered that reservation process. citizens who need it with language assistance in all stages of the electoral to demonstrate to the Department of jurisdictions covered required Section 5 preclearance change in voting D.C. that a proposed Justice (DOJ) or a federal district court in Washington could implement the the jurisdiction did not have a discriminatory purpose or effect before under Section 8 enabled the U.S. Attorney General to send change. The observer provision Chapter 1 provides the background on the VRA; a discussion on the VRA; background the 1 provides Chapter are still provisions of its of whether some debate relevant to the necessary. acted under voting discrimination. Congress to persistent response The VRA was Congress’ the Fourteenth and Fifteenth under protections the constitutional its powers to enforce originally discrimination. When the VRA was racial from to vote free Amendments for citizens African Americans, on eliminating discrimination against focus was enacted, the predominant added voting protections Congress and based on extensive testimony, but beginning in 1975 Americans, and Asian Americans. for language minorities—Latinos, Native on ballot access and vote dilu two primary forms of discrimination—limitations are There

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY

NATIONAL COMMISSION ON VOTING RIGHTS 10 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY NATIONAL COMMISSION ON VOTING RIGHTS 11 s low voter ocess in a covered juris- covered ocess in a Louisiana led the way in Section 5 preclearance denials with Texas, South Carolina, Mis- South Carolina, denials with Texas, Louisiana led the way in Section 5 preclearance Section 2 data, sissippi, and Georgia not far behind. These numbers, combined with the The voting discrimination documented in Section 2 lawsuits is not evenly dispersed dispersed The voting discrimination documented in Section 2 lawsuits is not evenly but also It is geographically concentrated, most heavily in Texas, country. the around states in Florida, Georgia, Louisiana, Mississippi, and South Dakota. Each of these Court under Section 4(b) of the VRA when the Supreme was fully or partially covered Holder that Section 4(b) was too outdated to target decided in Shelby County v. discrimination. present-day This includes at least 171 successful Section 2 lawsuits (not including minority language This includes at least 171 successful Section 2 lawsuits (not including minority denials, and 48 successful lawsuits raising language cases), 113 Section 5 preclearance minority lan- settlements regarding also ten pre-litigation were assistance claims. There guage cases. - 332 successful Vot with about an ongoing problem, Racial voting discrimination remains since 1995. Section 5 preclearance ing Rights Act lawsuits or denials of

• • • The findings include: • Chapter 2 presents a national analysis from 1995 to the present analysis Chapter 2 presents a national 2 Act (Section Rights of the Voting of successful enforcement and and preclearance denials, 5 litigation Section litigation, against English-only elections.)litigation diction when DOJ believed it was necessary to prevent discrimination. The determination of discrimination. The believed it was necessary to prevent diction when DOJ on the formula con- Section 5 and Section 8 was based subject to were which jurisdictions based on a jurisdiction’ of the Act. The formula—which was tained in Section 4(b) a discriminatory elections and the use of 1964, 1968, or 1972 Presidential participation in the had since 1975 because Congress same election—had not changed test or device in the continued to 1982 and 2006 that these jurisdictions in reauthorizations found in subsequent under the Section 4(b) formula states The covered of discrimination. records have significant and Southwest, as well as Alaska. primarily in the South were be- acted that Congress Court, Shelby County argued the Supreme In the challenge before 5 and did not update the formula Section it reauthorized yond its constitutional powers when Court subject to Section 5. The Supreme were determining which states and jurisdictions Withoutruled that the existing formula was unconstitutional. a formula, Section 5 cannot be to Shelby County, Section 5 is essentially acts in response used. Unless and until Congress dead. federal observers to monitor polling places and the vote-counting pr the vote-counting polling places and to monitor federal observers - decision. made these five states are the worst performers when it comes to discrimination cases to discrimination when it comes the worst performers five states are made these language assistance. outside of those involving minority lan- the states with the most successful California and were Texas, New York, settlements. Each had at least ten. cases or pre-litigation guage assistance

First, Section 5 prevented discriminatory voting changes from being put into use before they being put into use before discriminatory voting changes from First, Section 5 prevented voting changes in over 1,000 separate objection than 3,000 More underwent federal review. between 1965 and 2013. denied Section 5 preclearance letters and court judgments were the enactment of discriminatory laws. For example, it was not Second, Section 5 deterred amended a photo legislature until after the Sheby County decision that the North Carolina pending of three that law is the subject other voting restrictions; ID bill to add numerous federal lawsuits. or because DOJ and minority citizens transparency promoted the Section 5 process Third, they would know about voting changes before organizations (after DOJ contacted them) would be implemented. that had been blocked by DOJ or now implementing voting changes Fourth, jurisdictions are federal courts under Section 5. Under Section for Section 5 for several reasons. Fifth, Section 2 is not an adequate substitute the change was implemented, whereas before of a voting change occurred 5 the review is ongoing un under Section 2, the change gets implemented and is in effect while litigation • a result of the lost as what has been describes Chapter 3 Shelby County cases. In addition, less and until a court stops it—and this takes years except in the simplest under Section 5, the of proof; under Section 2, the minority plaintiffs or DOJ have the burden Section 2 cases tend to be complex, time- Moreover, of proof. jurisdiction had the burden under process to the 60-day administrative review consuming, and expensive as compared Section 5. - sending ob it from Shelby County to also prevent Sixth, DOJ appears to have interpreted for federal review. previously servers to the jurisdictions covered

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY

NATIONAL COMMISSION ON VOTING RIGHTS 12 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY NATIONAL COMMISSION ON VOTING RIGHTS 13 ought otections and African-American Citizens African-American discrimination to pervasive and longstanding voting subjected were African Americans in 1965. After the passage of passed the VRA voting until Congress them from preventing registration and to undo gains in minority voter efforts have been repeated the VRA, there turnout, of election methods that systematically diluted and negated particularly in the form African American voting strength. of the United States’ population 14 percent African Americans comprise approximately Today This has African-American population living in the South. of the country’s with 55 percent and turnout decision. National registration particular meaning in light of the Shelby County elections have been similar in the last two presidential rates for whites and African Americans party for the a major from was running for President (when an African-American candidate remains lower for midterm elections. Though first time) but African-American participation officials, this is largely a function a significant number of African-American elected are there that exist because of both VRA pr of the number of majority-minority districts segregation. residential by the Shelby County decision. The overwhelming particularly hard-hit African Americans are Section 5 between 1995 and 2014 (101 of 113, or majority of voting changes stopped by African- respect to involved a discriminatory purpose or effect with 90 percent) approximately American voters. br In addition, African-American plaintiffs and DOJ on behalf of African Americans nationwide between 1995 and of the successful Section 2 cases 36 percent approximately in the jurisdictions formerly brought of those cases were than 60 percent 2014, and more by Section 5. covered Latino Citizens in the United Latinos have faced a long history of electoral exclusion and discrimination elections. When States that included the use of literacy tests, intimidation, and English-only not only that English-only recognized the VRA was amended in 1975 and 1982, Congress that many of the elections led to pervasive discrimination against Latino citizens, but also also being of African-American citizens were methods being used to dilute the voting strength used against Latino citizens. Chapter 4 discusses the different historical contexts and historical the different 4 discusses Chapter Native Latinos, Americans, which African in areas geographic by voting affected been Americans have Asian and Americans, discrimination. - Latinos have grown to be the largest minority group in the United States (17 percent) and percent) United States (17 in the group the largest minority to be grown Latinos have in eight states, the population Latino population resides quarters of the though about three for jurisdiction that is covered so that 23 states have at least one the country lives throughout of the VRA. voting assistance under Section 203 Spanish-language rates for white citizens. citizens lag behind the participation participation rates for Latino Voter white registration election among voting age citizens, 2012 presidential For example, in the and the turnout18 disparity was higher than Latino registration, points was 14 percentage recent markedly in increased of Latino elected officials has points. The number percentage to majority-minority election districts and the opportuni years but this success is closely tied ties that they provide for Latinos to elect the candidates of their choice. ties that they provide between of the successful Section 2 cases (96 of 172) brought 56 percent Approximately on behalf of Latino citizens; by DOJ brought or were 1995 and 2014 involved Latino plaintiffs election election systems or racially gerrymandered most of these involved the use of at-large denials involved voting of the Section 5 preclearance districts. Between 1995 and 2013, 29 respect to Latino voters. or effect with changes that had a discriminatory purpose VRA is critically important for of the provisions Compliance with the language assistance Of noncompliance is widespread. but electoral process, Latino citizens to fully engage in the settlements between 1995 and cases or pre-litigation the 58 successful language assistance of Latinos. involved claims on behalf 2014, 46 (79 percent) Indians and Alaska Natives) Native American citizens (American to blatant discrimination for centuries that, among Native Americans have been subjected citizenship in 1924 but it was not granted They were other things, affected their right to vote. under subject to protection as a language minority group until their designation by Congress their right to vote. to exercise able the VRA in 1975 that many Native American citizens were of the total U.S. population, but because Native Americans comprise less than one percent concentrated primarily in portions of Oklahoma, Arizona, New Mexico, North and they are comprise a South Dakota, Montana, and Alaska, Native Americans in certain counties Voter turnout by Native American significant portion—if not a majority—of the population. (an estimated voting age citizens continues to lag far behind that of white voting age citizens 64 Native only are point disparity in the November 2012 election). There 17-18 percentage country and 2 federal legislators. the entire American state legislators across to discriminatory at least 18 successful challenges were Between 1995 and 2014 there on behalf of Native American citizens under Section 2 of the VRA voting practices brought challenges (not including bilingual assistance claims). Most of these involved vote dilution five successful language assistance lawsuits and were to at-large election systems. There

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY

NATIONAL COMMISSION ON VOTING RIGHTS 14 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY NATIONAL COMMISSION ON VOTING RIGHTS 15 - e Asian Americans Minority vote dilution involves electoral systems that devalue, negate or diminish the voting Minority vote dilution involves electoral systems that devalue, negate or diminish by unnecessarily putting them in majority-white jurisdictions of racial minority groups strength Chapter 5 discusses the problem of minority vote dilution of minority the problem Chapter 5 discusses 1995.since diction covered under Section 3(c). under Section diction covered Citizens Asian American immigra- U.S. citizenship under discriminatory denied were Asian Americans historically immigrants and native-born unable to vote, and both Asian tion laws, leaving them Asian to laws and practices. A 1965 change targeted by other discriminatory Americans have been - rec In 1975 Congress in Asian immigration. increase the immigration laws led to a dramatic voting discrimination against Asian American citizens in ognized the history of exclusion and amended the VRA to include new and it reauthorized the form of English-only elections when and specified Asian Americans as a language minority group. language minority provisions, of the total population of the United five percent Asian Americans comprise approximately between 2000 and 2010, and by 46 percent grew States. The Asian American population was due to immigration. Asian American voting age citizens participate much of that increase than white voting age citizens; in the 2012 election, in elections at rates significantly lower point disparity and a 19 percentage point disparity in registration was a 17 percentage there in turnout. is due to language Studies have found that at least some part of those disparities of voting discrimination. The Asian American population accessibility issues and other forms few electoral relatively are and so there primarily in heavily populated urban areas resides 11 Asian American mem- currently are majorities. There districts with Asian American voting American and two Asian 98 Asian American members of state legislatures, bers of Congress, governors. by covered bilingual election assistance in areas from Asian American citizens benefit greatly 1995 to 2014, ten successful language of the VRA. From the language minority provisions Because the assistance lawsuits and non-litigation settlements involved Asian languages. under Section 4(b) of the VRA at the time of the Shelby County decision jurisdictions covered denials preclearance low concentrations of Asian American citizens, only three had relatively voting changes on Asian between 1995 and 2013 have involved the effect of the proposed American citizens. In large part because of the dearth of jurisdictions wher no successful were enough to comprise a majority in a single-member district, there large are on behalf of Asians. vote dilution cases brought pre-litigation settlements. Because relatively few jurisdictions with concentrated Native with concentrated few jurisdictions Because relatively settlements. pre-litigation only one Section 5 objection was 5, there under Section covered were American populations involving a juris Americans, as well as one objection discrimination against Native regarding where they usually cannot elect their preferred candidates because most voters vote along candidates because their preferred they usually cannot elect where elections the use of at-large are principal forms of minority vote dilution racial lines. The two Section 2 cases districts. The majority of successful election and racially gerrymandered of Section 5 vote dilution claims, and the majority minority 2014 were between 1995 and upon minority vote dilution. based were objections since 1995 Voting Racially Polarized of minority vote dilution voting is a necessary element of racially polarized The presence as “a patternclaims. Racially polarized voting is defined where of voting along racial lines candidate the from same candidate who is different voters of the same race support the voting is not assumed to exist; its race.” Racially polarized supported by voters of a different by as a matter of fact. Racially polarized voting typically is proven must be proven presence vote based upon precinct-level voting preferences a statistical analysis that estimates group totals and demographic data. 1995 federal courts made find- Since be widespread. Racially polarized voting continues to plans in Colorado, to statewide redistricting ings of racially polarized voting in challenges and Wisconsin. Texas, Tennessee, South Dakota, Massachusetts, Montana, South Carolina, voting racially polarized also reported for purposes of statewide redistricting Experts retained patterns in Alaska, Arizona, California and Kansas. DOJ noted racially polarized voting as a plans in Arizona, Florida, to statewide redistricting factor in denying Section 5 preclearance any judicial finding of a Section 2 vote generally, More and Texas. Louisiana, South Carolina, a upon vote dilution, reflects denial based dilution violation, and any Section 5 preclearance is present. determination that racially polarized voting un- covered racially polarized voting in the states that were severe Studies have shown more ac- submitted by prominent Court brief der Section 4(b) of the VRA. For example, a Supreme to exit polls Holder lawsuit showed that, according ademic experts in the Northwest Austin v. election, Barack Obama was supported by 26 percent taken during the 2008 Presidential in the non-covered by Section 4(b) versus 48 percent of white voters in the states covered all fully covered states. The six states with the lowest rates of white support for Obama were and Texas. under Section 4(b): Alabama, Mississippi, Louisiana, Georgia, South Carolina, Racially Discriminatory Methods of Election under Section 2 between 1995 and 2014 of successful cases brought Over 70 percent in 21 states, of which brought raised claims against methods of election. These cases were Georgia and seven had Mississippi cases, 78 had Texas cases; four and one between had 18 had six.

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY

NATIONAL COMMISSION ON VOTING RIGHTS 16 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY NATIONAL COMMISSION ON VOTING RIGHTS 17 Far too many states and jurisdictions have enacted laws or adopted practices that have Far too many states and jurisdictions on community voter include restrictions unnecessary barriers to the ballot. These created at voter registration to provide the failure requirements, drives, proof-of-citizenship registration systems, public assistance agencies, felony disenfranchisement laws, dual voter registration cutbacks on early in-person voting, requirements, flawed voter purging, voter identification with access to polling places, special barriers affecting Native Americans, and voter problems the subject of extensive testimony at NCVR hearings, and were intimidation. These problems litigation. the subject of heated public debate and current some of them are Community Voter Registration Drives effective and especially benefit minority citizens. drives are Community-based registration (8.9 and Latinos (7.2 percent) data, African Americans to 2010 Census Bureau According drives at significantly higher registration to vote at voter having registered report percent) drives on voter registration restrictions Therefore, rates than white voters (4.4 percent). have been repeated raise serious concerns about limiting minority voter participation. There registration drives. Florida historically did not restrict community voter efforts in Florida to passage of the NVRA and has attempted to limit their drives before permit voter registration Chapter 6 discusses a variety of state laws and practices that can of state laws and practices a variety Chapter 6 discusses citizens for minority to the ballot access with restrict or interfere voters. to a greater extent than white Changes to methods of election accounted for 19 Section 5 preclearance denials in nine 19 Section 5 preclearance accounted for to methods of election Changes state-level objection in and 2013. These included one states between 1995 different in South Carolina. Texas and four total of five in Mississippi, with a Redistricting Plans Racially Discriminatory category of suc- plans accounted for the second principal redistricting Racially discriminatory plans denials. Redistricting dilution cases and Section 5 preclearance cessful Section 2 vote dis- submerge minority voters in overpopulated typically voting strength that dilute minority comprising the majority them from population concentrations to prevent tricts, divide minority or “cracking”), or unnecessarily overconcentrate of a fairly-drawn district (“fragmentation” (“packing”). them in a minimal number of districts 113) of the Section 5 preclearance than half (58 of more Redistricting changes accounted for plans in included denials of statewide redistricting denials between 1995 and 2013. These denials). (four statewide preclearance and Texas Arizona, Florida, Louisiana, South Carolina, successful Section 2 challenges to 30 redistricting were Between 1995 and 2013, there Massachusetts, Rhode Island, South Dakota, plans, including statewide plans in Colorado, and Wisconsin. Texas, Tennessee, - eclear ance, Georgia modified its procedure, which DOJ administratively precleared. precleared. which DOJ administratively ance, Georgia modified its procedure, issue. Arizona and has been a highly contentious of citizenship for voter registration Proof Georgia have enacted into effect, while Alabama and Kansas have put these requirements in Court held not yet implemented them. In 2013 the U.S. Supreme but these requirements under forms” for voter registration ITCA that Arizona must accept and use “federal Arizona v. by Arizona of citizenship required the proof not provide the NVRA, even if the applicants do under oath, of U.S. citizenship via an attestation The federal form establishes proof state law. ITCA decision, Kansas and Arizona After the Arizona v. as do the vast majority of state forms. compel the U.S. Election Assistance Commission to filed a lawsuit in Kansas seeking to in litigation. those states. This case remains modify the federal form instructions for Voter Registration at Public Assistance Agencies registration in public assistance agencies to offer voter Section 7 of the NVRA requires and changes of address. renewals of benefits, conjunction with applications for benefits, of the client population for the two largest larger share a relatively Because minorities are opportunities during cov- voter registration to provide the failure public assistance programs, negative impact on minority citizens. Since transactions has a disproportionately agency ered noncompliance widespread remedy 2006, a concerted effort by voting rights organizations to to state officials and a series of successful with Section 7 has involved extensive outreach ap- than two million voter registration in the submission of more lawsuits. This has resulted levels. plications above the preexisting Felony Disenfranchisement con- voting because, at some point, they were banned from Nearly 6 million Americans are higher rates victed of a felony offense. These laws affect minority citizens at a substantially and Virginia) at least one in five states (Florida, Kentucky, than white citizens overall. In three availability on repeated occasions despite the National Voter Registration Act of 1993 (NVRA). Act of 1993 (NVRA). Registration the National Voter despite occasions on repeated availability State was non-racial theories found that the federal court judgments based on recent Two drives. voter registration on restrictions imposing unconstitutional Proof of Citizenship - provid require that procedures adopted voter registration years have Several states in recent to voter vote or in response to to register in order of U.S. citizenship ing documentary proof in 2008 attempted For example, the State of Georgia by election officials. challenges brought voter registration license data and driver’s between record-matching to use administrative of U.S. citizenship to elec- proof voters, unless the voters provided registered files to purge preliminary injunction against Georgia, which court issued a tion officials. After a three-judge under Section 5 for administrative preclearance the State to submit its procedure required and impact on noting its unreliability to the program, of the VRA, DOJ denied preclearance 5 declaratory judgment action seeking judicial pr minority voters. After filing a Section

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY

NATIONAL COMMISSION ON VOTING RIGHTS 18 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY NATIONAL COMMISSION ON VOTING RIGHTS 19 There is now a wealth of statistical data allowing opponents of the laws to show the real a wealth of statistical data allowing opponents of the laws to show the real is now There impact of these laws on voters, and in the cases in Wisconsin, and Texas, South Carolina, compelling impact on minority voters. The cases have also provided the disproportionate witnesses and other evidence demonstrating implementation issues that testimony from affected voters. This was particularly true in Pennsylvania. Conversely, opponents of the photo ID laws who are bringing legal challenges read the bringing legal challenges read photo ID laws who are opponents of the Conversely, definitively the number of people nega- them to show more Indiana decision as requiring compelling and provide demonstrate implementation problems, tively affected by the law, by the law. individuals burdened testimony from After the Supreme Court upheld Indiana’s law against a right-to-vote challenge, certain law Court upheld Indiana’s After the Supreme legal immunity to the decision as providing interpreted state legislators and proponents any kind of voter identification law. A state with a photo ID requirement must provide an effective method for citizens to must provide A state with a photo ID requirement poll The first Georgia law did not and was found to be an unconstitutional ID. obtain a free qualifying ID at the voter to obtain a free its law to enable a registered tax. Georgia revised law was upheld against a challenge that included a office. The second county registrar’s variety of legal theories.

• • have been ad- laws have passed and there has been that new restrictive The end result federal cases involving laws cases, such as the recent ditional legal challenges. The more and the state case involving the Pennsylvania in Wisconsin, and Texas South Carolina, that the jurisprudence though it is important to note the following trends, have shown law, is still evolving. • • African-American adults is disenfranchised. This is a major issue without a litigation solution without a litigation is a major issue This adults is disenfranchised. African-American felony disenfranchisement law if the will only accept a challenge to a because federal courts purpose. Federal was enacted with a racially discriminatory that the law plaintiffs can prove laws based upon to felony disenfranchisement challenges rejected courts have uniformly test. theories or the Section 2 results other constitutional Voter Identification govern- provide voters to registered states of laws requiring enactment by The increased - counted may be the most conten votes are their identification (ID) before ment-issued photo legal issue of the last decade. Several of these laws have been subject to tious voting-related the first two of these laws in 2005, and the ensuing challenge. Georgia and Indiana passed of these laws with a num- and opponents proponents federal legal challenges have provided ber of lessons, including the following: e and media essur The courts in WisconsinThe courts for the stated rationale skeptical about were and Pennsylvania of voter that the primary rationale—the prevention of a dearth of proof these laws because by the law. fraud—is advanced voter or virtually any, enable any, hesitant to accept a law that does not Courts have been alternative, another at the such as signing an affidavit ID or provide to easily obtain a free voter to vote without an ID. polling place, for any

attention did Clear Channel, the owner of the billboards, take them down because its client take them attention did Clear Channel, the owner of the billboards, • • Voting Early In-Person last several years, as popular over the to be increasingly Early in-person voting has proven for some form of early voting. African provide 33 states and the District of Columbia currently voting; a 2008 statistical analysis of election data Americans in particular favor early in-person that African Americans voted early at a rate of 26 to 1 in Cuyahoga County in 2008 showed not showing that degree other jurisdictions, while to whites and studies from as compared often. that African Americans employ early voting much more consistently show of disparity, popularity of early voting amongst African Americans, In spite, or perhaps because, of the Ohio, and Wisconsin scaled back the states such as Florida, North Carolina, have recently availability of early voting. Problems at Polling Places of polling places has the closing or consolidation have been several instances where There of concernsbeen blocked by a court or DOJ because about its discriminatory impact on Monterey Texas; North Dakota; Bexar County, County, minority voters, including in Benson of certain officials in jurisdictions con- California; and Alaska. In addition, the refusal County, offices or voting sites on satellite registration to provide taining Native American reservations litigation was filed or threatened. where has only been overcome reservations Voter Intimidation and Voter Challenges to DOJ’s to bring voter intimidation cases because, according DOJ has been reluctant of Election Offenses manual, intimidation is “subjective” and often there Federal Prosecution voter intimidation means of preventing previous evidence or witnesses. DOJ’s is not concrete decision to to be seen whether DOJ’s the use of federal observers. It remains was through after the Shelby County jurisdictions terminate its observer coverage in the formerly covered in voter intimidation. in a substantial increase decision will result tactics may be employed by election officials or by private parties. A intimidation-type Voter the 2012 election was the placement of billboards example from recent particularly egregious minority communities in Ohio and Wisconsinin predominantly “notifying” voters that voter pr fraud was a felony subject to prison terms or fines. Only after significant

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY

NATIONAL COMMISSION ON VOTING RIGHTS 20 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE EXECUTIVE SUMMARY NATIONAL COMMISSION ON VOTING RIGHTS 21 ovisions a oficiency in In addition to this report, the NCVR’s website,votingrightstoday.org, includes additional website,votingrightstoday.org, the NCVR’s In addition to this report, 25 the from information, including state-level analyses and photos, quotes, and pictures Commission hearings. report and its Appendices report. This first briefly summarizes the NCVR’s The foregoing summary. discussions of the preceding detailed provide Chapter 8 includes some brief concluding thoughts. This is concluding thoughts. This some brief Chapter 8 includes with maps and details that contains an Appendix followed by the report. in discussed some of the key metrics As discussed above, Section 203, the chief language assistance provision, was enacted was enacted provision, Section 203, the chief language assistance As discussed above, English-only elections on and discriminatory effect of the exclusionary in 1975 to address age citizens with limited English pr Latino, Native American, and Asian voting Chapter 7 reviews the record of violations and enforcement of the the record of violations Chapter 7 reviews of the VRA. provisions language minority of the citizen voting age population than five percent they comprise more jurisdictions where the right of Puerto address specifically than 10,000 people. Other provisions or number more and discrimination based on their limited English proficiency from Rican voters to vote free assistor of his or her choice. In ad- the ballot to have an the right of a voter who cannot read under the general Section 2 occasionally been brought dition, minority language cases have non-discrimination provision. years but sets of language minorities in recent for all three participation has improved Voter whites, making non-compliance with these pr continues to lag significantly behind 48 successful cases and have been 1995 to 2014, there for concern. From particular reason These cases dem- the minority language protections. ten non-litigation settlements involving of certain jurisdictions to provide including the long-standing refusal onstrate several trends, language assistance leads to electoral success for assistance prior to litigation, that effective lack of minority language between the and the interconnection the language minority group, assistance and racial hostility. would not divulge its identity. Concerns chal- deception and challenges and voter about voter divulge its identity. would not of Elections to State Board election led the North Carolina the November 2012 lenges before on how to deal with these issues. of elections to the county boards issue a directive

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NATIONAL COMMISSION ON VOTING RIGHTS 22 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 1 NATIONAL COMMISSION ON VOTING RIGHTS 23 -

1a in June 2013, and that decision’s in June 2013, and that decision’s 1 [t]he Voting Rights Act of 1965 reflects Congress’ firm intention to rid the Act of 1965 reflects Congress’ firm intention Rights Voting [t]he Act is a complex The heart of the country in voting. of racial discrimination at areas where voting discrimination has scheme of stringent remedies aimed are aimed at voting Act portions of the been most flagrant… [Other] remedial discrimination in any area of the country where it may occur. , the Supreme Court essentially stopped the use of the Section 5 preclear Shelby County, the Supreme negation of the VRA’s preclearance requirement and possibly other VRA requirements as well. and possibly other VRA requirements requirement preclearance negation of the VRA’s Katzenbach v. observed in his seminal opinion in South Carolina As Chief Justice Warren months after it was enacted, constitutionality a few upholding the VRA’s PHOTO CREDIT: JAMES KARALES. COPYRIGHT: ESTATE OF JAMES KARALES, 1965 ESTATE JAMES KARALES. COPYRIGHT: PHOTO CREDIT: I. THE PRELUDE TO THE 1965 ACT: ALMOST A CENTURY OF A CENTURY ALMOST ACT: THE 1965 TO THE PRELUDE I. AFRICAN-AMERICAN DISENFRANCHISEMENT century- shameful and almost of this country’s The VRA was enacted against the backdrop history of pervasive long disenfranchisement of millions of its African-American citizens. That of the social and economic conditions that discrimination was not the inevitable result For over three decades, Congress, the Executive Branch, and the federal courts joined to- the Executive Branch, decades, Congress, For over three and give life to the 15th Amendment’s the VRA enforce gether in a historic effort to vigorously not be denied or abridged on account of race or color. guarantee that the right to vote shall in this Report. Then, review in the time period under however, This consensus began to erode, in This Report’s assessment of recent voting discrimination in the United States begins with an in the United States begins with an voting discrimination assessment of recent This Report’s provisions, origins, (VRA), including the statute’s Rights Act of 1965 overview of the Voting time period examined in this report electoral opportunity up until the and impact on minority an overview of the Supreme This chapter also provides (the years 1995 to the present). Holder momentous decision in Shelby County v. Court’s ance requirement (and also perhaps the federal observer program) by ruling unconstitutional (and also perhaps the federal observer program) ance requirement Section 5 (and the observer which identified the parts of the country where the VRA provisions in effect and continue to be enforced. remain applied. Other VRA remedies program) CHAPTER 1 CHAPTER Rights Act Voting The Background: of 1965 8 These “tests or devices” included any 9 Congress responded, and less than five months later, President President and less than five months later, responded, Congress 7 requirement that voters “(1) demonstrate the ability to read, write, understand, or interpret interpret write, understand, or that voters “(1) demonstrate the ability to read, requirement of any particular any matter; (2) demonstrate any educational achievement or his knowledge his qualifications by the voucher of subject; (3) possess good moral character; or (4) prove II. THE 1965 VOTING RIGHTS ACT VOTING RIGHTS THE 1965 II. registration laws and stop the ac- of business was to knock down the first order The VRA’s and voting. registering African Americans from preventing that were tions by local registrars out a formula for The VRA sought to do this in several ways. First, Section 4 of the Act laid prohibited and temporarily voting discrimination was most prevalent where identifying areas the use of voting “tests or devices” in those areas. Marchers walk toward the Edmund Pettus Bridge during the Selma to Montgomery March for Voting Rights Rights for Voting Selma to Montgomery March the Edmund Pettus Bridge during the walk toward Marchers of 1965. register in Mississippi saw both valiant efforts to Summer after the 1964 Freedom Finally, civil rights of three the murders violence including African Americans to vote and retaliatory across peacefully marching 7, 1965 attack on protesters workers, and after the brutal March on Congress Johnson stood before Alabama, President the Edmund Pettus Bridge in Selma, that “There voting rights bill. Johnson declared 15, 1965 to urge the adoption of a new March is only the struggle for human rights,” rights. There is no issue of States rights or national and “we shall overcome.” Johnson signed the Voting Rights Act of 1965 into law on August 6. Johnson signed the Voting -

5 - e the

6 and that was immediately followed by the Hayes-Tilden and that was immediately followed by 2

3 Congress enacted its first voting rights laws since the 19th Century Congress 4 tions about Jim Crow. After World War II, the Jim Crow regime began to crumble in the face of civil rights protests, began to crumble in the face of civil rights protests, regime II, the Jim Crow War After World racial discrimination, tentative action Court and lower federal courts that rejected a Supreme raised ques by the federal Executive Branch, and a national consciousness that at least Compromise of 1877, which ended Reconstruction. This ushered in a long era during This ushered of 1877, which ended Reconstruction. Compromise to racial branches of the federal government took a “hands-off” approach which all three all of By 1900, nearly in voting in particular. discrimination generally and racial discrimination Jim Crow and the resulting rights had been reversed, the Reconstruction-era gains in voting The concerted to effectively nullify the the 20th Century. era persisted until the second half of and racially- a variety of ways, including racially-inspired 15th Amendment was carried out in sought to dilute and voting, election methods that voter registration on restrictions enforced against and fraud and violence directed voting power of African Americans, any residual African-American voters. Still, these efforts were only able to dent the structure of oppression. As of March 1965, less As of March of oppression. only able to dent the structure Still, these efforts were of all African Americans living in Alabama, Georgia, Louisiana, Mississippi, than one-third about three- to vote, whereas registered and Virginia were South Carolina, North Carolina, fourths of the white population of those States was registered. preceded the Civil War and the end of slavery but, instead, represented a substantial back a substantial instead, represented end of slavery but, and the War the Civil preceded sliding from the initial progress in voting rights that followed after the Civil War. in voting rights that the initial progress sliding from Amendments to the Constitution the country ratified the 14th and 15th In 1868 and 1870, any denial or abridge- prohibiting and of the law, citizens equal protection guaranteeing to all - Both Amendments included enforce vote on account of race or color. ment of the right to through power to implement these guarantees specific Congress ment clauses giving voting rights for all citizens— the Amendments did not promise legislation. While appropriate Amendment in 1920, and the until the ratification of the 19th not enfranchised women were 14th and 15th addressed—the was not reservations status of Native Americans living on to herald the end of racial discrimination in voting. Amendments appeared elected to voted, and were former slaves registered, Indeed, during the Reconstruction era These gains in black political empowerment wer political office in significant numbers. of the 14th and 15th Amendments enforcement of the federal government’s result direct in the former Confederate States. of federal troops legislation and the presence through these Amendments to invalidate con- interpreted Court narrowly But in 1876 the Supreme civil rights legislation, gressional in 1957, 1960, and 1964, and lawsuits were filed against numerous voting registrars in the registrars voting filed against numerous in 1957, 1960, and 1964, and lawsuits were Civil Rights Division of the U.S. Department of Justice (DOJ). South by the newly created

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 1

NATIONAL COMMISSION ON VOTING RIGHTS 24 Marchers walk toward the Edmund Pettus Bridge during the Selma to Montgomery March for Voting Rights of 1965.

Finally, after the 1964 Freedom Summer in Mississippi saw both valiant efforts to register African Americans to vote and retaliatory violence including the murders of three civil rights workers, and after the brutal March 7, 1965 attack on protesters peacefully marching across the Edmund Pettus Bridge in Selma, Alabama, President Johnson stood before Congress on March 15, 1965 to urge the adoption of a new voting rights bill. Johnson declared that “There is no issue of States rights or national rights. There is only the struggle for human rights,” and “we shall overcome.”7 Congress responded, and less than five months later, President Johnson signed the Voting Rights Act of 1965 into law on August 6.8

II. THE 1965 VOTING RIGHTS ACT

The VRA’s first order of business was to knock down the registration laws and stop the ac- tions by local registrars that were preventing African Americans from registering and voting. The VRA sought to do this in several ways. First, Section 4 of the Act laid out a formula for identifying areas where voting discrimination was most prevalent and temporarily prohibited the use of voting “tests or devices” in those areas.9 These “tests or devices” included any requirement that voters “(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 character; or (4) prove his qualifications by the voucher of

12 South Carolina South Carolina

13 And in Section 11, Congress prohibited prohibited And in Section 11, Congress Second, Section 6 of the Act gave the Section 6 of the Act Second, 15 10

18 16 Discussing the VRA’s specially targeted provisions, the Court captured the Court captured specially targeted provisions, Discussing the VRA’s 17 Third, Section 8 gave the Attorney General the authority to send federal Third, 11 In Section 4(e), Congress took a first step toward addressing potential discrimination addressing took a first step toward In Section 4(e), Congress 14 Congress… found that case-by-case litigation was inadequate to combat Congress… found that case-by-case litigation was inadequate to because of the inordinate widespread and persistent discrimination in voting, amount of time and energy required to overcome the obstructionist tactics After enduring nearly a century invariably encountered in these lawsuits. Congress might well Amendment, of systematic resistance to the Fifteenth of the decide to shift the advantage of time and inertia from the perpetrators evil to its victims. in English-only elections, establishing a remedy for Puerto Rican citizens educated in schools for Puerto a remedy in English-only elections, establishing language was not English. the predominant where observers into polling places in the Section 4 areas to monitor and document the conduct of to monitor and document places in the Section 4 areas observers into polling and intimidation by private citizens. misconduct by election officials elections and to deter the essence of the new legal framework Congress had established for addressing racial racial had established for addressing the essence of the new legal framework Congress discrimination in voting: The constitutionality of the VRA was immediately challenged by several of the states covered covered states the of several by challenged immediately was VRA the of constitutionality The voter registration, regarding special remedies Act’s by Section 4 and thus subject to the Court, in the Supreme lawsuit was filed directly Their election monitoring, and preclearance. the events of Bloody Sunday on the Edmund 7, 1966, exactly one year after and on March in Pettus Bridge, the Court decisively upheld all the challenged provisions Katzenbach. v. registered voters or members of any other class.” voters or members registered voter intimidation. U.S. Attorney officials by dispatching federal the authority to bypass local election General designated voters in these same areas qualified to register (known as “examiners”) registrars by Section 4. The VRA also included, in Section 2, a nationwide general prohibition on voting discrimina- a nationwide general prohibition The VRA also included, in Section 2, tion. Congress understood, however, that once minority voters became able to vote, the risk was that once minority voters became understood, however, Congress would had been most prevalent discrimination and localities where substantial that states for minimizing or canceling out minority electoral enact or seek to administer new techniques new that all included Section 5 in the VRA. Section 5 requires participation. Thus, Congress review be- identified by Section 4 undergo federal in areas voting practices and procedures that new ensure designed to “preclearance”—was implementation. This review—called fore did not have the purpose and would not have the effect of denying practices and procedures of race or color. or abridging the right to vote on account

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22 In that 19 Finally, the 1975 Finally, 27

20

and a permanent, nationwide ban in 1975. and a permanent, nationwide ban in 28 21 In addition, the 1975 legislation added Section 203 to the 26 Accordingly, as part of the 1975 reauthorization legislation, as part of the 1975 reauthorization Accordingly, 25

23 Congress also received information indicating that in a subset of these ar information indicating that in a subset also received Congress 24 eas, the impact of English-only elections and other discriminatory practices was comparable eas, the impact of English-only elections and other discriminatory practices effectively partici- from African Americans to the voting “tests or devices” that had prevented pating in the electoral process. In 1975, Congress also received extensive information indicating that in certain parts of the also received In 1975, Congress and discriminatory impact the use of English-only elections was having a substantial country, Indians, and on language minority citizens – Hispanic Americans, Asian Americans, American Alaska Natives. VRA, which requires bilingual election assistance in other areas around the country. These the country. around bilingual election assistance in other areas VRA, which requires identified by a separate coverage formula laid out in Section 203. are areas Congress extended Section 4 coverage – and thus the Section 5 preclearance requirement requirement extended Section 4 coverage – and thus the Section 5 preclearance Congress conducting English-only elections. Congress – to particular states and localities that were for as long English-only elections in these newly-designated Section 4 areas also prohibited as Section 4 coverage continued. Part of Congress’ original structuring of the targeted “test or device,” preclearance, examiner, examiner, preclearance, of the targeted “test or device,” original structuring Part of Congress’ which would have effectively of a sunset provision was the inclusion and observer remedies to expire. by allowing the Section 4 coverage in 1970 terminated these remedies III. REAUTHORIZATION AND EXPANSION OF THE VRA’S VRA’S THE OF AND EXPANSION REAUTHORIZATION III. AFTER 1965 REMEDIES As part of the debate over each post-1965 reauthorization of Section 4 coverage and thus reauthorization As part of the debate over each post-1965 areas of voting discrimination in the covered record examined the recent Section 5, Congress As a result requirement. need for the preclearance was a current to assess whether there was a significant and ongoing pattern of voting found that there Congress of each review, to be a significant risk continued there and that, accordingly, discrimination in these areas, back without would be rolled achieved in these areas that the electoral gains that had been federal oversight. The congressional debates in 1970, 1975, 1982, and 2006 over reauthorizing the Section 4 and 2006 over reauthorizing debates in 1970, 1975, 1982, The congressional Section 5 preclearance whether to continue requiring coverage formula focused mostly on applied to the Section remedy other most significant for voting changes. This is because the a into on voting “tests or devices” – was expanded by Congress – the prohibition 4 areas 1970 nationwide five-year suspension in legislation amended Section 2 and Section 5 of the VRA to include a prohibition on discrimi- legislation amended Section 2 and Section 5 of the VRA to include a prohibition nation against language minority citizens. year, however, Congress reauthorized Section 4 coverage for another five years, and then 4 coverage for another five years, Section reauthorized Congress however, year, years in 1982, and 25 years additional seven years in 1975, 25 coverage for an reauthorized decision). then in 2013 by the Shelby County again in 2006 (terminated

39

33

31 The 35 By margins of 390-33 in 36 41 , Ashcroft and in 2003 in Georgia v. 38

40 Congress based the new results test on the test based the new results Congress 29

34 30

37 Following the 1975 reauthorization, the Supreme Court issued a third decision Court issued a third Supreme the Following the 1975 reauthorization, 32 As in 1982, the 2006 legislation included amendments to respond to recent Supreme Court Supreme to recent As in 1982, the 2006 legislation included amendments to respond Those deci- believed had undermined voting rights enforcement. decisions that Congress Bossier Parish School Board sions, in 2000 in Reno v. in favor of Section 5 in 1980, rejecting claims that Section 5 violated principles of federal- claims in favor of Section 5 in 1980, rejecting could Section 5, and that Congress to reauthorize lacked the authority ism, that Congress voting changes that have a discriminatory effect. on not include in Section 5 a prohibition had significantly restricted the scope of Section 5’s prohibition on voting changes with either prohibition restricted the scope of Section 5’s had significantly a discriminatory purpose or a discriminatory effect. The 1970, 1975, and 1982 reauthorizations also extended the application of the federal The 1970, 1975, and 1982 reauthorizations again by Section 4. In 2006, Congress covered in areas examiner and observer provisions since they had not the examiner provisions but repealed extended the observer authority, no longer needed. been used for several years and were After the Supreme Court’s initial decision in March 1966 upholding the constitutionality of initial decision in March Court’s After the Supreme constitutional challenges to the Act. Later to reject Court continued the VRA, the Supreme 4(e), of Section of the bilingual provisions in 1966, the Court upheld the constitutionality The 1982 reauthorization legislation also included an expansion of the VRA, in the form of an of the VRA, in an expansion legislation also included reauthorization The 1982 on racial general prohibition to that section’s test 2 adding a results amendment to Section to was adopted to respond discrimination in voting. The amendment and language minority made it significantly Bolden, in which the Court Mobile v. Court decision, a 1980 Supreme and multi-member to successfully challenge at-large difficult for minority plaintiffs more the 14th Amendment. election plans under Most recently, in 2005 and 2006, Congress conducted a series of 20 hearings and heard conducted a series of 20 hearings and heard and 2006, Congress in 2005 Most recently, Sections 5 and 203. whether to reauthorize 90 witnesses in deciding testimony from for resolving claims against at-large and claims against at-large upon prior to Mobile for resolving had relied that courts standard multi-member elections. the House of Representatives and 98-0 in the Senate, Congress voted to extend Section 4 and 98-0 in the Senate, Congress the House of Representatives 203 for an coverage, and thus Section 5, for an additional 25 years, and to extend Section into Bush signed the 2006 reauthorization George W. additional 25 years as well. President law on July 27, 2006. evidence received included the 2006 Report of the National Commission on the Voting National Commission on the Voting included the 2006 Report of the evidence received within findings of voting discrimination numerous Rights Act, which summarized and detailed 1982 and 2005. by Section 4 between the jurisdictions covered The Supreme Court’s last decision upholding the constitutionality of Section 5 was in 1999, last decision upholding the constitutionality Court’s The Supreme the assertion that case, the Court again rejected In that following the 1982 reauthorization. Section 5 violated federalism principles. and following the 1970 reauthorization, the Court summarily rejected a renewed challenge to a renewed the Court summarily rejected and following the 1970 reauthorization, Section 5.

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48 and in practice 44

47

43

45 Section 2 is enforced through lawsuits through Section 2 is enforced 42 Once these preconditions are satisfied, plaintiffs must then are Once these preconditions 46a Successful Section 2 vote dilution claims like these must meet three Successful Section 2 vote dilution claims like these must meet three 46 if, based on the totality of the circumstances, it is shown that the political based on the totality of the circumstances, if, or election… are not equally open to processes leading to nomination by [Section 2] in that [they] have less participation by… citizens protected of the electorate to participate in the political opportunity than other members of their choice. process and to elect representatives establish a violation under the full “totality of the circumstances” analysis. establish a violation under the full “totality of the circumstances” Thornburg v. Gingles: (1) the minority Court in Thornburg v. first identified by the Supreme “preconditions” to comprise a majority of the eligible population in population must be sufficiently numerous single member district, (2) the minority voting population must be politi a reasonably-drawn be defeated as cally cohesive, and (3) minority voters’ candidates of choice must generally of white bloc voting. the result tion or prerequisite to voting, or standard, practice, or procedure with respect to voting.” with respect practice, or procedure to voting, or standard, tion or prerequisite Section 5 required certain states and political subdivisions of other states to obtain federal certain states and political subdivisions of Section 5 required whenever they would “enact or seek to administer any [new] voting....qualifica preclearance Section 5 Section A detailed explanation of this broad standard was set forth in the 1982 Senate Judiciary standard A detailed explanation of this broad Report identified a variety of factors that for the legislation. The Senate Committee report analysis, in undertaking a “totality of the circumstances” may be considered Section 2 Section and against voting practices is a permanent nationwide prohibition Section 2 of the VRA a language minor or membership in basis of race, color, that discriminate on the procedures that have a discriminatory both by practices and procedures Section 2 is violated ity group. that have a discriminatory result. purpose and those IV. THE VRA’S MAJOR PROVISIONS MAJOR VRA’S THE IV. filed in local federal courts (i.e., the court where the defendant jurisdiction is located). the defendant jurisdiction is located). courts (i.e., the court where filed in local federal that a violation exists provides standard The Section 2 results While Section 2 applies to all voting practices and procedures, it has most frequently been been it has most frequently and procedures, While Section 2 applies to all voting practices plans. at-large election systems and redistricting applied in “vote dilution” challenges to redistricting court decisions finding that at-large systems and have been numerous There of Section 2 settlements requiring have been hundreds plans violate Section 2, and there district-based counties, cities, and school districts to abandon at-large voting and adopt methods of election. courts have relied upon these factors in applying Section 2. courts have relied , or The - 52 Thus, effect was evaluated by 54

50 Whichever forum was chosen, it was the ju- Whichever forum 51 For the coverage determinations based upon the For the coverage determinations based 55

Voting changes subject to Section 5 were not permitted to be not permitted 5 were changes subject to Section Voting 53 56 49 implemented unless and until preclearance was obtained. and until preclearance implemented unless The Section 5 “effect” standard, distinct from the Section 2 “results” standard discussed standard the Section 2 “results” distinct from The Section 5 “effect” standard, the implementation of Section 5 barred specifically, backsliding. More above, prohibited minorities with in the position of racial a retrogression any voting change “that would lead to of the electoral franchise.” to their effective exercise respect 1964 and 1968 elections, the VRA defined the term “test or device” as those practices (such 1964 and 1968 elections, the VRA defined the term “test or device” as those later permanently as literacy tests) which, as described above, the VRA temporarily and then meaning of “test or banned. For coverage determinations based upon the 1972 election, the a where device” was expanded to also include the use of English-only election procedures voting age of the citizen than five percent constituted more language-minority citizen group population of the jurisdiction. Section 4 coverage – and thus Section 5 – was further subject to As also discussed earlier, and extended coverage in 1970, 1975, reauthorized Congress sunset provisions. recurring discrimination had 1982, and 2006 after finding on each occasion that a high level of voting continued in the Section 4 areas. in effect until Shelby County based upon a combination of evalu- Thus, Section 5 remained upon the evaluations built into the coverage relied First, Congress ations by Congress. 1972 to identify formula, which looked at electoral conditions existing in 1964, 1968, and Section 5 applied broadly to any change affecting voting, even one that might seem minor or one that might voting, even to any change affecting applied broadly Section 5 its face. unobjectionable on risdiction that had the burden of proof, not minority citizens or the Justice Department. not minority of proof, the burden risdiction that had comparing minority electoral opportunity under the new practice to minority electoral op comparing minority electoral opportunity effect existed if the new practice practice. A discriminatory portunity under the pre-existing would make that opportunity worse. of identified by a series and localities subject to Section 5 were the states As noted earlier, The Section 4 coverage formula, first enacted in contained in Section 4 of the Act. provisions covered 1975, operated as follows: jurisdictions were 1965 and then amended in 1970 and at the time of the 1964, 1968, or voting for registration if (1) they employed a “test or device” eligible voters of the jurisdiction’s 50 percent election, and (2) less than or 1972 presidential or voted in the same election. registered Jurisdictions were required to seek preclearance either by filing suit in the U.S. District Court either by filing suit to seek preclearance required Jurisdictions were an administra- a declaratory judgment) or by making (requesting for the District of Columbia the U.S. Attorneytive submission to General. jurisdiction was required to demonstrate that each voting change “neither ha[d] the purpose each voting change “neither ha[d] to demonstrate that jurisdiction was required abridging the right to vote on account of race or color nor will have the effect of denying or [language minority status]....”

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60 Second, Second, 57 and Section ed to provide ed to provide 61 ee counties in New equir ork (thr Over the years, a number of jurisdictions took Over the years, a 58 They differed in terms of the processes used to identify in terms of the processes They differed 63

59 was decided, there were nine States subject to Section nine States subject to Section were Shelby County was decided, there requiring certain jurisdictions around the country to provide voting materials in one or the country to provide certain jurisdictions around requiring 62 - sections incorporated identical substantive re languages in addition to English. These more for language assistance. quirements 5 in their entirety – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, 5 in their entirety – California (three covered and Virginia.In addition, portions of six other States were Texas, (two townships), New Y counties), Florida (five counties), Michigan As a result, at the time As a result, advantage of this exit ramp. advantage of this exit language assistance in the voting process. In 1975, Congress enacted two complementary provisions, Section 4(f)(4) Section enacted two complementary provisions, In 1975, Congress Language assistance requirements assistance Language York City), North Carolina (40 of the State’s 100 counties), and South Dakota (two counties). State’s (40 of the City), North Carolina York those areas of the country that had a history of persistent voting discrimination. a history of persistent country that had of the those areas the covered jurisdictions. These provisions, like Section 2, are enforced through litigation filed through enforced like Section 2, are jurisdictions. These provisions, the covered individuals. by the Justice Department or minority by the 1975 amendment to the Section covered Section 4(f)(4) applied to those jurisdictions the coverage formula unconstitu- Court found 4 coverage formula. Given that the Supreme continue to be jurisdictions to tional in the Shelby County case, it is unclear whether there Court did not discuss Section 4(f)(4) in the Shelby which Section 4(f)(4) applies. The Supreme continuing viability. County decision and thus did not specifically rule upon that section’s into account the number or coverage formula, which takes on a different Section 203 relies members of a of voting age citizens in a state or political subdivision who are percentage in English, and whether the and who have limited proficiency single language minority group illiteracy is higher than the national language minority group illiteracy rate of the jurisdiction’s in 1982, 1992, and once it was reauthorized rate. Section 203 also includes a sunset proviso; data collected by the U.S. Census drawn from coverage data are again in 2006. The relevant thus the jurisdictions subject to Section 203 change somewhat over time. New and Bureau, to be made at originally made at ten-year intervals; since 2006 they are determinations were by a specifica- five-year intervals. Each Section 203 coverage determination is accompanied tion of the specific language or languages for which the jurisdiction is r 203, Congress relied upon four separate evaluations that updated Congress’ assessments of that updated Congress’ upon four separate evaluations relied Congress whether a pattern of in the jurisdictions with a history of voting discrimination was continuing voting discrimination. themselves to remove permitted individual jurisdictions to sue the outset, Section 4 From of coverage). coverage (to “bail out” from

64 - The The 68 This section primarily affects citi- 70 The Guidelines further explain that “[c]ompliance… The Guidelines further explain that “[c]ompliance… 67 The sections require that both written election materials that both written election materials The sections require 65

69 The Guidelines specify that covered jurisdictions “should take jurisdictions “should take The Guidelines specify that covered 66 tively in voting-connected activities....” all reasonable steps” to provide language assistance “in a way designed to allow members language assistance “in a way designed to allow members steps” to provide all reasonable to be effectively informed of and participate effec of applicable language minority groups is best measured by results[,]” and that the requisite results are most likely to be achieved most likely to be achieved are results and that the requisite by results[,]” is best measured working in close cooperation with local community organizations. areas by covered language assis- jurisdictions to provide Section 4(e) of the VRA, enacted in 1965, requires “educated in American-flag schools in which the tance to United States citizens who were language was other than English.” classroom predominant and oral assistance be provided in the language of the covered language minority group. language minority group. in the language of the covered and oral assistance be provided further described in the Attorney of Sections 4(f) and 203 are The substantive requirements Act Regarding Rights Voting of the Guidelines on Implementation of the Provisions General’s Language Minority Groups. According to the most recent determinations issued in 2011, the States of California, Florida, to the most recent According also 203 (for Spanish), and individual counties are under Section fully covered are and Texas other in 22 covered in those States. Individual counties and townships are separately covered for covered for Spanish, but many are covered predominantly States. Local jurisdictions are Asian, Native American, and Alaska Native languages. other languages including a variety of zens who attended primary school in Puerto Rico. There is no particular geographic coverage is no particular zens who attended primary school in Puerto Rico. There litigation. through attached to this section. Section 4(e) also is enforced provision Guidelines also endorse the targeting of language assistance to those language minority minority Guidelines also endorse the targeting of language assistance to those language to all to be provided citizens in need, so that language assistance is not necessarily required eligible voters in the jurisdiction. Sections 4(f)(4) and 203 apply to all stages of the election process, i.e., to “registration or i.e., to “registration of the election process, Sections 4(f)(4) and 203 apply to all stages to the or other materials or information relating voting notices, forms, instructions, assistance, including ballots.” electoral process,

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- - 75

73 These “bail in” provisions continue in effect after These “bail in” provisions 72

74 Under Section 3(c), a court may designate a jurisdiction for preclearance a jurisdiction for preclearance Under Section 3(c), a court may designate 71

76 of all or a subset of its voting changes. Section 11(a) of the VRA prevents election officials from refusing to count legitimate votes. refusing to count legitimate from election officials Section 11(a) of the VRA prevents Section 208 of the VRA, enacted in 1982, provides that any voter who requires assistance to assistance that any voter who requires Section 208 of the VRA, enacted in 1982, provides or write may be assisted by a per inability to read or of blindness, disability, vote by reason Section 201 of the VRA is a permanent nationwide ban on the use of specified “tests or de Section 201 of the VRA is a permanent or voting. registration to vices” as prerequisites Other VRA provisions employer or agent of the employer or officer choice, other than the voter’s son of the voter’s union. or agent of the voter’s Permanent prohibition of certain tests and devices for voting tests and devices of certain Permanent prohibition The 1965 Act also includes provisions allowing courts to designate a jurisdiction not covered allowing courts to designate a jurisdiction not covered The 1965 Act also includes provisions a specified time period. Under Section 3(a), a court may by Section 4 for similar coverage for the 2006 amendments, for federal (and, before designate a jurisdiction for federal observers examiners as well). Coverage of additional areas for preclearance and federal areas Coverage of additional observers Since 1965, the Attorneyfed- by Section 8 of the VRA to send General has been authorized provided under Section 4, covered polling places located in jurisdictions eral observers into that the Attorney or parish for observers. As with Section General certifies a particular county question Section 4 coverage formula raises the ruling against the 4(f)(4), the Shelby County even to the Section 8 authority, subject that are continue to be jurisdictions of whether there has concluded that the 8. DOJ apparently did not discuss Section though Shelby County after Shelby County. authority no longer is enforceable Section 8 observer Federal observers Federal Shelby County. Section 11(b) of the VRA prohibits intimidation, threats, or coercion in the voting process in the voting process or coercion intimidation, threats, Section 11(b) of the VRA prohibits law (that is, governand applies to private persons as well as persons acting under color of mental officials).

- 77 eflects the fact However, in reality, both types of discrimination in reality, However, 78 Voting practices that may dilute minority voting strength are those election methods or are practices that may dilute minority voting strength Voting in the context of racially polarized voting, tend to minimize or cancel out which, structures candidates to office. Such practices may preferred the ability of minority voters to elect their plans that un- election districts; redistricting include: at-large election systems; multi-member into a limited number of districts; or pack minority voters necessarily fragment minority areas or areas residential that either fence out minority areas and annexations of white residential in the context of at-large voting. percentage minority population city’s a reduce to as “first generation” sometimes referred are Discriminatory ballot-access restrictions r discrimination and vote dilution as “second generation” discrimination. This often the initial method chosen to deny or on ballot access were restrictions that, historically, voters gained abridge the right to vote, and vote dilution was undertaken only after minority access to the ballot at least to some extent. Voting practices that limit or restrict access to registration or voting may discriminate on the access to registration practices that limit or restrict Voting (depending upon the particular practice involved basis of race or language minority status be in which the practice is being implemented). Practices that may and/or the circumstances a lack rolls; purging of registration limitations or the improper of concern include: registration bilingual assistance; limitations on early in-person voting of bilingual assistance or ineffective elimination of polling for in-person voting; the or absentee voting; a photo ID requirement on candidate qualifica- intimidation; and restrictions places or polling place changes; voter tions or on candidate qualification procedures. vote dilution Minority V. THE TWO FORMS OF VOTING DISCRIMINATION: LIMITATIONS LIMITATIONS VOTING DISCRIMINATION: TWO FORMS OF THE V. VOTE DILUTION AND ACCESS ON BALLOT - one of two forms, restric be characterized as occurring in discrimination generally may Voting minority voting strength. that dilute and election methods or structures tions on ballot access restrictionsBallot access tion as something that occurred only after the VRA was adopted, or to view “first generation” only after the VRA was adopted, or to view “first generation” tion as something that occurred discrimination as something that existed only in the past. is a long history of “second generation” voting discrimination in Alabama For example, there the VRA. In 1911, although the State had almost completely disenfranchised that predates at-large method of its African-American citizens, the City of Mobile, Alabama changed to an may occur concurrently, and instances of “first generation” discrimination may follow after and instances of “first generation” discrimination may occur concurrently, discrimina “second generation” discrimination. Nor is it accurate to view “second generation”

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84 Later in the 1950s, although African-American although African-American Later in the 1950s, Through continued enforcement efforts, the African- continued enforcement Through 79 83

85

82

81 On the other hand, “first generation” discrimination clearly remains a present-day concern. present-day remains a discrimination clearly On the other hand, “first generation” have enacted photo Chapter 6, several States recently For example, as discussed in detail in discriminate against minority voters. provisions, ID laws that, because of their particular The initial focus of the VRA in 1965 on removing barriers to voter registration by African to voter registration barriers removing The initial focus of the VRA in 1965 on Within to a substantial degree. of the enact- about six years result Americans had the desired rate in the States of Alabama, registration ment of the VRA, the combined African-American and Virginia climbed to South Carolina, Georgia, Louisiana, Mississippi, North Carolina, 1965. Still, the almost 30 points higher than that rate had been in March about 57 percent, a substantial eleven points below the rate in 1971-72 remained African-American registration rate in those States. white registration registration remained depressed, the Alabama Legislature redrew the boundaries of the City of the City the boundaries redrew Legislature the Alabama depressed, remained registration African-American population. of the city’s 99 percent to remove of Tuskegee portunity of minority citizens to register, vote, and elect candidates of choice dramatically vote, and elect candidates of choice dramatically portunity of minority citizens to register, the and Southwest, but throughout 1965 to 1995, most notably in the South from improved country as well. The impact of the VRA on our Nation’s political processes has been profound. The op been profound. has political processes The impact of the VRA on our Nation’s VI. IMPACT OF THE VRA ON MINORITY ELECTORAL THE OF IMPACT VI. TO 1995 1965 OPPORTUNITY, electing its city government “to reinforce the 1901 [State] Constitution as a buttress against against a buttress Constitution as the 1901 [State] city governmentelecting its “to reinforce office holding.” the possibility of black American registration rates further improved thereafter, such that by the time of the 2006 thereafter, rates further improved American registration rates in comparable to the white registration the African-American rates were reauthorization most of the South, with a few exceptions. discrimination against lan- that began in the mid-1970s to address the efforts However, on the graph on the As shown guage minority citizens have not yielded the same results. for language minority rates following page, substantial disparities between registration continuing. citizens and whites are of that legislation also sponsored legislation that banned the technique of single-shot voting of single-shot voting legislation that banned the technique sponsored of that legislation also out of a concern Alabama, that those for county commissioners across in at-large elections use this technique to elect individuals to vote might registered who were African Americans to office. - Objections to 91 Other examples included 86

90 89

88 and South Carolina’s adoption of a discriminatory redistricting plan for its state sen a discriminatory redistricting adoption of and South Carolina’s 87 [t]he recent objections entered by the Attorney General… to Section the [t]he recent objections entered by bespeak the continuing need for [the Section 5] 5 submissions clearly registration and voting of minority citizens As mechanism. preclearance increasing other measures may be resorted to which would dilute increases, switching to at- Such other measures may include minority voting strength. or the adoption of annexations of predominantly white areas, large elections, discriminatory redistricting plans.” By 1975, a pattern of conduct by Section 4 jurisdictions was apparent. As the House By 1975, a pattern of conduct by Section 4 jurisdictions was apparent. reauthorization, Section 5’s supporting 1975 report Judiciary Committee observed in its This did not mean, however, that ballot access discrimination had ended, as Section 5 objec- This did not mean, however, also interposed to many such changes. tions were As Congress anticipated in 1965, the enactment of the VRA was followed by a series of new anticipated in 1965, the enactment As Congress For example, in 1965 Mississippi areas. in the specially covered discriminatory measures and in 1966 assistance in voting, illiterate voters to receive allowing provisions repealed to at-large district to switch from of supervisors boards adopted a state law to enable county objections to both changes. elections. DOJ interposed Section 5 ate, to which the DOJ objected in 1972. In the years after 1975, this pattern continued. During the remainder of the 1970s, and In the years after 1975, this pattern continued. During the remainder voting changes then in the 1980s, 1990s, and into the 2000s, a majority of the objected-to and annexations. involved discriminatory election methods, redistrictings, Georgia’s adoption of restrictions on assistance to illiterate voters, to which the DOJ objected adoption of restrictions Georgia’s in 1968, changes affecting ballot access were also interposed. Congress reiterated its particular reiterated its particular also interposed. Congress changes affecting ballot access were

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96 SHELBY As explained 95

93 99 Other successful dilution Other successful 94 and again in 2006. 92 This led to the election of the first Latino to the Board in over a to the Board This led to the election of the first Latino 97 98 that, a finding Bossier Parish School Board Court ruled in Reno v. In 1997, the Supreme under Section 2 of the VRA could not be that a voting change had a discriminatory result used to object to a voting change under Section 5 of the VRA.

A positive pattern also emerged in the 1970s and continued with increasing force in the in the force A positive pattern with increasing also emerged in the 1970s and continued and school districts – particularly a substantial number of cities, counties, 1980s and 1990s: The at-large to district election systems. – changed from subject to Section 5 in the areas Regester, overturning multi- in 1973, White v. Court decision a Supreme initial impetus was African-American that they diluted on the ground Legislature the Texas member districts for of the 14th Amendment. in violation and Latino voting strength century. • VII. SUPREME COURT’S LIMITS ON SECTION 5, CONGRESS’ LIMITS ON SECTION 5, SUPREME COURT’S VII. DECISION IN THE SUPREME COURT’S AND RESPONSE, decisions substantially curtailing the scope of the Court issued three After 1995, the Supreme in 2013, the Court issued its decision in Then, nondiscrimination requirements. Section 5’s requirement. preclearance Holder, which effectively nullified the Shelby County v. concern generation” would undo the “first that generation” discrimination about “second Section 5 in 1982 when it reauthorized progress standard by Mobile standard the pre- 1982 to revive then amended Section 2 in above, Congress filed suits were of Section 2 hundreds test. Thereafter, the new Section 2 results creating and many abandoned, in which at-large systems were leading to decisions and settlements in anticipation that they might be sued. Section 5 other localities abandoned at-large systems led to the adoption of district election methods. objections to dilutive annexations also suits based on the 14th Amendment followed. In 1980, however, the Supreme Court did a Court did the Supreme followed. In 1980, however, suits based on the 14th Amendment the constitutional Bolden decision, substantially re-interpreting sharp U-turn in its Mobile v. prevail. to difficult for plaintiffs more cause of action and making it much - 2 challenging discriminatory redistrict under Section brought lawsuits also were Finally, not subject to Section 5. For in the areas ing plans, particularly (although not exclusively) Court of Appeals upheld a district court ruling invalidating example, in 1990 the Ninth Circuit of Supervisors because it discrimi- Board plan for the Los Angeles County the redistricting nated against Latino voters. COUNTY V. HOLDER -

ed to 103

eal opportunity 106 The Court’s ruling The Court’s The Court did not 101 109

105 This was highly problematic since it is unclear what constitutes a This was highly problematic The Bossier Parish school district intentionally drew its post-1990 school district intentionally drew The Bossier Parish and inconsistent with prior decisions by the Supreme Court. by the Supreme and inconsistent with prior decisions On appeal, the U.S. Court of Appeals for the District of Columbia On appeal, the U.S. Court of Appeals for the District of Columbia 104 100 102 107

108 - court in Washing it meant that DOJ and the federal because was particularly troublesome contrary intentionally discriminatory practices, to preclear ton D.C. would now be required to their prior practice , the Supreme Court substantially re-interpreted the Section Court substantially re-interpreted , the Supreme Ashcroft In 2003, in Georgia v. - plans. The Court held that redistrict as applied to redistricting standard 5 retrogression minority “influence districts” in addition to to take into account required were ing reviews the opportunity to elect their minority voters would have considering those districts where candidates. preferred Bossier Parish II in Bossier Parish and the Court held Court, Supreme to the case returned In 2000, the with a a jurisdiction adopts a voting change not violated where that Section 5 is generally voters worse off compar if the change would not make minority discriminatory intent what existed before. redistricting plan to avoid creating even one majority African American single-member African American single-member even one majority plan to avoid creating redistricting - to the Court, be 5, according intent did not violate Section district, but this discriminatory American districts either and thus did not include any majority African cause the old plan be retrogressive. or intended to not retrogressive the new plan was minority “influence district” and, whatever the term means, it is questionable whether such minority “influence district” and, whatever voting, in fact offer much if any r districts, in the context of racially polarized to minority voters to influence elections.

address the constitutionality of the preclearance remedy. As a result, today, no jurisdiction is today, As a result, remedy. the constitutionality of the preclearance address - As noted above, the Section 4(f)(4) pro requirement. subject to the Section 5 preclearance also apply hibition on English-only elections and the Section 8 authority for federal observers at issue in or mentioned in was only to Section 4 jurisdictions, and although neither provision either provision. Shelby County, DOJ does not appear to be enforcing tion was constitutional. ia by the District of Columbia by Holder was filed in the U.S. District Court for Shelby County v. on April 27, 2010. The federal judge hearing the case conducted Alabama Shelby County, and concluded that the 2006 reauthoriza Congress before of the record review a thorough • • The Supreme Court then took the case and, on June 25, 2013, reversed the judgment of the Court then took the case and, on June 25, 2013, reversed The Supreme or jurisdictions district court and held that the Section 4 formula that determined which states for their voting changes is unconstitutional. had to seek federal review Circuit conducted its own review of the record and agreed with district court ruling, with one with district court ruling, with one and agreed of the record its own review conducted Circuit judge dissenting. As noted, as part of the 2006 reauthorization of Section 5, Congress amended Section 5 in Congress of Section 5, As noted, as part of the 2006 reauthorization the statute . The amendments essentially returned to Bossier Parish II and Ashcroft response Court decisions. the Supreme that pre-dated to the discrimination standards

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114 The Chief Justice thereby ignored ignored thereby The Chief Justice 110

but did not conduct any detailed review of the massive record of the massive record any detailed review but did not conduct 113 111 Justice Ginsburg began her opinion with the following overview of Justice Ginsburg began her opinion 112 Recognizing that large progress has been made, Congress determined, determined, Congress has been made, Recognizing that large progress that the scourge of discrimination was not based on a voluminous record, as decides whether, The question this case presents is who yet extirpated. or a Congress charged this Court, §5 remains justifiable, currently operative, “by appropriate Amendments War post-Civil with the obligation to enforce the Congress concluded With overwhelming support in both Houses, legislation.” First, unabated. continue in force, §5 should for two prime reasons, that, of the impressive gains thus far made; continuance would facilitate completion Those assessments continuance would guard against backsliding. and second, to make and should elicit this Court’ were well within Congress’ province unstinting approbation. is that all the previously covered states and localities are states and localities are covered The consequence of Shelby County is that all the previously to determine whether now able to implement voting changes without advance federal review is now back on 1965, the burden true before As was discriminatory. the new practices are discriminatory the DOJ and minority citizens to identify and obtain court judgments against voting practices in the jurisdictions with the worst histories of voting discrimination. And, as Justice Ginsburg stated later in her opinion, “[t]hrowing out preclearance when it has out preclearance And, as Justice Ginsburg stated later in her opinion, “[t]hrowing away throwing worked as and is continuing to work to stop discriminatory changes is like not getting wet.” in a rainstorm because you are your umbrella In the 5 - 4 decision, Chief Justice Roberts concluded that the Section 4 coverage provisions provisions 4 coverage that the Section Roberts concluded 4 decision, Chief Justice In the 5 - Section 4 coverage formula was needs” because the based on “current not properly were conditions in 1964, 1968, and 1972. based on electoral Congress had gathered in 2005 and 2006, based on which Congress made a direct and made a direct based on which Congress in 2005 and 2006, had gathered Congress 5. need for Section specific legislative finding of the current and for Justices Breyer, the dissenting opinion for herself Justice Ginsburg authored and Kagan. Sotomayor, the 2006 reauthorization and its constitutional validity: and its constitutional the 2006 reauthorization the fact that Section 5’s reauthorization in 2006, like the reauthorizations that preceded it, that preceded the reauthorizations in 2006, like reauthorization 5’s the fact that Section concluded had and that Congress needs, current evaluation of on Congress’ was premised by the identified in 2006 that a pattern in the areas of voting discrimination was continuing that “voting discrimination still formula. Chief Justice Roberts conceded Section 4 coverage that[,]” exists; no one doubts “The suppression is geared toward the minority vote, the African American vote, and the Hispanic vote. Because if you can suppress that vote, then you don’t have to worry about losing the power that you have gained as a result of what we put in some time ago.”

–State Rep. Mickey Michaux (NCVR North Carolina Hearing) PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2 NATIONAL COMMISSION ON VOTING RIGHTS 41

1

2 Cases concerning bilingual election assistance for language minority voters, brought Cases concerning bilingual election assistance for language minority voters, brought on oc- claims brought under Sections 203, 4(f)(4), and 4(e) of the VRA, as well as related casion under Section 2 and Section 208 of the VRA. Section 5 preclearance denials, either in the form of administrative objections interposed denials, either in the form of administrative objections interposed Section 5 preclearance a three-judge Justice (DOJ) or in litigation before by the United States Department of with denials of panel in the United States District Court for the District of Columbia, along under Section 3(c) of the VRA; and for jurisdictions covered preclearance Affirmative litigation brought in federal court under Section 2 of the VRA, including chal- Affirmative litigation (including at-large elections) that plans and methods of election lenges to redistricting to candidates voters to elect their preferred minimize or cancel out the ability of minority and vote denial challenges to other voting practices office (i.e., vote dilution challenges), separately); treated are procedures involving access to the ballot (bilingual

The voting rights record reviewed in this chapter focuses upon three types of compliance is- in this chapter focuses upon three reviewed The voting rights record Rights Act since 1995: sues arising under the Voting PHOTO CREDIT: ALLISON MEDER PHOTO CREDIT: Separate listings identifying each individual matter in the three categories are included in the categories are Separate listings identifying each individual matter in the three - Supplemental Online Appendix (http://votingrightstoday.org/ncvr/resources/discriminationre indicators of voting discrimination, each not the only relevant port). While these categories are discrimination occurs today voting one sheds light on the critical questions of how frequently and whether it is geographically concentrated. • • • Racial voting discrimination remains a serious problem in the United States. Several states, in the United States. Several states, problem a serious remains Racial voting discrimination Texas and varied violations since 1995. have shown a pattern of repeated especially Texas, documented indica- have significantly more each: (1) the worst records and other states with under Section 4(b) of the covered and (2) were tors of voting discrimination than average; decision. This pattern Rights Act (VRA) prior to the Shelby County is clearly seen in Voting at least 171 successful lawsuits under Section 2 of the VRA, 113 of the post-1995 record denials and 48 successful lawsuits and ten non-litigation settlements Section 5 preclearance of the VRA. the language assistance provisions enforcing CHAPTER 2 CHAPTER Overview Of Voting National 1995–2014 Discrimination, Number of Matters, By Type Type Number of Matters, By Practice at Issue of Voting 58 Redistricting 20 Methods of election/selection 7 Jurisdictions’ annexations/de- annexations 20 Ballot access (not bilingual) 4 Bilingual 30 Redistricting 123 Methods of election/selection 21 Ballot access 58 Bilingual . In fact, approximately Shelby County. In fact, approximately Number of Matters Involving Jurisdictions That Under Covered Were Section 4 113 123 15 Number of Matters Involving a State-Level Practice 21 16 2 Number of Matters 113 171 58 Type of Type Enforcement Matter Preclearance Preclearance Denials Section 2 (non-bilingual) Cases Bilingual Cases As shown in Tables 2, 3, and 4, Texas, a state fully covered by Section 4(b), had, by far, the by Section 4(b), had, by far, state fully covered a and 4, Texas, 2, 3, As shown in Tables Louisiana, matters—over 110. Four states—Georgia, overall number of enforcement greatest of matters each; three between 20 and 28 enforcement Mississippi, and New York—had (i.e., was partially covered York under Section 4(b) and New wholly covered these states were subject to the Section 5 preclearance and therefore covered some local jurisdictions were and 19 states had between 13 though the state as a whole was not). Three requirement was fully South Carolina matters each—California, Florida, and South Carolina; enforcement covered. partially by Section 4(b) and California and Florida were covered in most of the Section 2 litigation and Section 5 Minority vote dilution was the problem plans or methods of election. denials, in the form of discriminatory redistricting preclearance access to the ballot comprised a sizable minority of the Section 2 discriminatory However, lawsuits under the language denials as well. The numerous cases and Section 5 preclearance to comply by local jurisdictions failure of the VRA showed widespread assistance provisions with those provisions. three-fourths of these matters involved Section 4(b) jurisdictions. of these matters three-fourths VRA 1: Enforcement:Table January 1995 to June 2014 - lawsuits or administra 2014 over 300 1995 and June 1, between January in Table As shown of a va- abandonment, or alteration under the VRA led to the prohibition, tive determinations of these matters While one or more at both the state and local levels. riety of voting practices that was heavily concentrated in the jurisdictions states, the activity in 31 different occurred 4(b) at the time of under Section specially covered were

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2

NATIONAL COMMISSION ON VOTING RIGHTS 42 Rogene Gee Calvert, director of the Texas Asian American Redistricting Initiative testified about the need for additional bilingual poll workers in Harris County, which now mandates Vietnamese and Chinese language assistance; she also discussed the difficulty Asian seniors have in obtaining operpr documents to get a photo ID. (NCVR Texas Hearing) PHOTO CREDIT: SAMUEL WASHINGTON

About 10 percent of these enforcement matters (identified in Table 1) dealt with state-level voting practices. That is, about 10 percent dealt with practices adopted by or being admin- istered by a state; in some instances, the discriminatory effect of these practices was state- wide or nearly so, while in other instances the discrimination was more localized.

In its Shelby County decision, the Supreme Court admonished Congress to consider current conditions when it acts to address voting discrimination through a preclearance requirement. As discussed in detail below, the current conditions show that voting discrimination is a seri- ous present-day problem and occurs most frequently in specific states.

I. LITIGATION UNDER SECTION 2 OF THE VRA

Section 2 of the VRA has applied nationwide since it was enacted in 1965. The record of successful lawsuits brought under Section 2 is not, on its own, sufficient to show the full extent of voting discrimination, but it is the logical point at which to begin that assessment. If voting discrimination is no longer a serious problem in the United States, then the overall number of successful Section 2 cases should be small, and the cases should either be evenly distributed among the states, or there should be fewer Section 2 cases in the states ab Successfully Challenged Practices Ballot access (21); Method of election (123); Redistricting (30) Method of election (1); Redistricting (1) identification for in-person vot- Voter ing (Native American tribal members) Election schedule (1); Method of election (1) Method of election (2); Redistricting method (1) (1); Voting Method of election (1); Redistricting (1) Method of election (4); Poll worker ballots (1); training (1); Provisional method (1) purge (2); Voting Voter Method of election (6); Redistricting challenges (1) (2); Voter Candidate qualification Candidate qualification (1); Method of election (1); Redistricting (2); Voting method (1) Method of election (2); Redistricting (5) Method of election (1); Redistricting (2) Race-based polling place challenges State-Level Cases 16 cases -- 1 -- 1 (voting method) 1 (redistricting) 2 (poll worker - training, provi sional ballots, vot- ing method, voter purges) -- 1 1 (voting method) -- - 1 (legis. redistrict ing) -- Coverage Under Section 4 123 cases dealt with jurisdictions under covered Section 4 State State None Partial (1 case) None Partial (2 cases) State None None State None None Number of Cases 171 2 1 2 4 2 6 9 1 5 6 2 1 These included 16 state-level cases where a state law or practice, rather state-level cases where These included 16

4 3 State (27 TOTAL States) Alabama Arizona Arkansas California Colorado Florida Georgia Hawaii Illinois Louisiana Massachusetts Michigan formerly covered under Section 4(b) (since their voting changes had been federally screened screened had been federally their voting changes Section 4(b) (since under formerly covered for decades). In fact, there were at least 171 successful Section 2 cases since 1995, an average of nearly Section 2 cases since 1995, an average at least 171 successful were In fact, there nine per year. successfully of the practices that were in question. Nearly 90 percent than a local one, was plans or principally redistricting 2 involved vote dilution claims, challenged under Section individually in the listed are 2 and in Table summarized These cases are at-large voting rules. Appendix. Supplemental Online 2:Table Successful Section 2 Cases: January 1995 to June 2014

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2

NATIONAL COMMISSION ON VOTING RIGHTS 44 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2 NATIONAL COMMISSION ON VOTING RIGHTS 45 ab By contrast, the 2000 5 Method of election (7); Redistricting Method of election (7); (1) intimidation (5); Voter Registration Method of election (4); and early voting sites (1) Method of election Redistricting Method of election (2); (1) method (2); Voting Method of election (2) Method of election (1); Polling place (1) Method of election (2) Polling place Redistricting Method of election (3) Early voting (1); Method of election qualifica- (2); Redistricting (3); Voting tions (1) Method of election (1); Redistricting (2) Method of election (78); Redistricting (2); Unknown (2) (1); Redistrict- Photo ID requirement ing (1) Method of election Successfully Challenged Successfully Practices

6 -- -- 1 (voting method) ------1 (legis. redistrict ing) -- - 2 (legis. redistrict ing & method of election) - 1 (legis. redistrict ing) - 1 (cong. redistrict ing) 2 (photo ID; legis. redistricting) -- -- State-Level State-Level Cases None None Partial (1 case) Partial (both cases) None None None None State Partial (1 case) None State None None State Coverage Under Coverage Section 4 5 1 5 2 2 2 1 1 3 7 3 82 2 1 13 Number of Cases Montana Nebraska New York North Carolina North Dakota Ohio Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Wisconsin Wyoming included together with other claims under the VRA language assistance provisions a Bilingual Section 2 claims are 4). (see Table than one voting practice. b A few lawsuits involved more Mississippi State Thus, one quarter of the nation’s population resided in states or counties that prompted in states or counties that prompted population resided Thus, one quarter of the nation’s of all successful Section 2 claims. three-quarters census data showed that more than three-fourths of the nation’s total population lived in non- of the nation’s than three-fourths census data showed that more Hispanic as did substantial majorities of the African-American (61 percent), areas, covered populations. and Native American (75 percent) (68 percent), These cases were—by an overwhelming margin—disproportionately concentrated in the an overwhelming margin—disproportionately These cases were—by Holder. of Shelby County v. by Section 4(b) of the VRA at the time covered states that were resolved Section 2 lawsuits (123 of 171) of the successfully nearly three-quarters Specifically, under Section 4(b). covered in jurisdictions that were brought were -

12

that 15 As 11 9 was but one instance where was but one instance where 8 These 113 preclearance denials These 113 preclearance 14

10 - congres Texas’ which found that 7 The U.S. District Court for the District 13 sional redistricting plan violated Section 2 of the VRA and bore the “mark of intentional dis- VRA and bore plan violated Section 2 of the sional redistricting violation,” equal protection crimination that could give rise to an federal courts have found racial discrimination in a Texas statewide redistricting plan. statewide redistricting in a Texas federal courts have found racial discrimination case before the Supreme Supreme the detail in Chapter 5, after having lost the LULAC case before discussed in more the Texas, District 23 in West of Congressional Court, based upon the racial gerrymandering the same thing in to do precisely for redistricting used its next opportunity legislature Texas inten to be found court three-judge which a plan, redistricting 2011 congressional the State’s under Section 5. tionally discriminatory and retrogressive II. PRECLEARANCE DENIALS UNDER SECTION 5 OF THE VRA THE SECTION 5 OF PRECLEARANCE DENIALS UNDER II. was denied on 113 occasions since 1995. DOJ issued 109 objection letters Preclearance under Section 5 and one objection including 108 objections to voting changes covered under Section 3(c). concerning a jurisdiction covered Approximately two-thirds (110) of the successful Section 2 suits were brought against juris- against brought 2 suits were the successful Section (110) of two-thirds Approximately These included three and Texas. states: Georgia, Louisiana, Mississippi, dictions in just four state-level cases. of any state, both qualitatively and is indisputably the worst in Texas The Section 2 record Section 2 litigation accounted for about half of the successful alone Texas quantitatively. since 1995. Perry, 2006 decision in LULAC v. Court’s The Supreme are summarized in Table 3 and listed individually in the Supplemental Online Appendix. in Table summarized are of Columbia (DDC) denied preclearance on four occasions. of Columbia (DDC) denied preclearance California provides an informative contrast to Texas. California has had relatively few success- California has had relatively an informative contrast to Texas. California provides California extensive litigation under the did have ful Section 2 cases since 1995. However, minority of the VRA, which coincided with a rapidly growing language assistance provisions small number of Section 2 cases tensions. The relatively population and no shortage of racial in California that can be largely might be seen as an anomaly given these other factors, but Rights Act (CVRA), the California Voting explained because California has a state law, has been used to change the method of electing city councils and school boards from at- from of electing city councils and school boards has been used to change the method legal showing that plaintiffs must make under the CVRA large to single-member districts. The is little doubt that is somewhat less demanding than under Section 2 of the VRA, but there number of Section 2 cases without the CVRA. California would have seen a much greater for vote dilution in a statutory remedy California is the only state that provides Unfortunately, local governmental election systems.

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2

NATIONAL COMMISSION ON VOTING RIGHTS 46 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2 NATIONAL COMMISSION ON VOTING RIGHTS 47 e Types of Voting Changes Denied Changes of Voting Types Preclearance 20 Ballot access (non-bilingual) (10 state- 20 Ballot access (non-bilingual) 7 Jurisdic- level); 4 Bilingual (1 state-level); de-annexations; tions’ annexations and (1 state- 20 Methods of election/selection state-level) level); 58 Redistricting (8 Annexation (2 cities); Redistricting (2) Method of election (1); Redistricting (1 state-level) Method of election Absentee voting procedure (1 state-level); Absentee voting procedure Redistricting (1 state-level); Reduction in early voting hours (1 state-level) Election date (1 state-level); Method of election (2); Polling place (1); Redistricting qualifica- registration/candidate (8); Voter (1 procedure registration tion (1); Voter state-level) Annexation (5 objections for a city court); (2 state-level); change procedure Precinct Redistricting (13 with 1 state-level); Re- duction in size of elected body (1) Voter registration location registration Voter Annexation (1 city); Candidate qualification (1 state-level); Election cancellation (2); Method of election (1 state-level); NVRA implementation plan (1 state-level); Polling place (1); Redistricting (9); Special election (1) Changing an elected position to appointed (1); Method of election (1) Method of election (3); Redistricting criteria (1 state-level); Redistricting (2) Annexation (1 city); Defunding of school district (1); Method of election (4); Photo (1 state-level); Redistricting ID requirement (8 with 1 state-level); Reduction in size of elected body (1) State-Level Denials 21 0 1 N/A 0 3 2 3 0 3 0 1 2 cd DDC Denials 4 0 0 0 0 1 0 0 0 0 0 0 1 b Objection Letters 109 3 2 0 1 2 14 21 1 15 2 6 15 Coverage Under Section 4 State State State Partial Partial State State Partial State Partial Partial State a State TOTAL Alabama Arizona Alaska California Florida Georgia Louisiana Michigan Mississippi New York North Carolina South Carolina Table 3: Administrative and Judicial Preclearance Denials: January 1995 to to January 1995 Denials: Preclearance Judicial and Administrative 3: Table June 2014 e Types of Voting Changes Denied Changes of Voting Types Preclearance Redistricting (Section 3(c)) Redistricting (8 with 4 state-level); Redis- Redistricting (8 with 4 state-level); of election (5); tricting criteria (1); Method (2 cities); Reg- Annexation, de-annexation ID (1 state-level); Photo istration procedure (4 (1 state-level); Bilingual procedure req’t with 1 state-level); Candidate qualification (1 state-level); General election procedure (1); Polling place & early voting location (1); method (1) Voting Method of election (1); Polling place (1); Redistricting (5) State-Level Denials 0 6 0 cd DDC Denials 0 2 0 b Objection Letters 1 20 6 Coverage Under Section 4 Partial and Section 3(c) State State State South Dakota Texas Virginia Shelby County v. Holder did not affect the ability of the Attorney General to interpose objections to changes a Shelby County v. under Section 3(c) of the VRA, but no orders court preclearance by federal affecting voting in jurisdictions covered 2013. such objections have been issued since June as opposed to the total number of voting counted by objection letter, b Administrative objections in this table are counted in this table by lawsuit, as opposed to similarly denials are changes objected to. Judicial preclearance letter blocked On multiple occasions, a single objection the total number of voting changes denied preclearance. Texas to three action the D.D.C. denied preclearance multiple voting changes, and in one judicial preclearance conserva- therefore plans. The counts of administrative objections and D.D.C. denials are statewide redistricting also exclude six objections withdrawn by the Attorney General based upon changes in tive. The objection figures after which the United States consented to judicial preclearance. and exclude one other objection fact or law, Columbia. to the U.S. District Court for the District of c DDC refers (these and Texas denials in South Carolina followed by judicial preclearance objections were administrative d Two two other included in this table in the counts of DDC denials, and not in the objection letters counts); two are - and Florida concerned pre voting changes for which no administrative Texas denials from judicial preclearance clearance decision was made. sum to a greater and thus will to specific voting changes denied preclearance, e The counts in this column refer per preclearance, number than the counts of administrative objection letters and D.D.C. judgments that denied note b. Texas and Louisiana vie for the worst Section 5 record. Texas had 22 total preclearance deni- had 22 total preclearance Texas and Louisiana vie for the worst Section 5 record. Texas denials), six of the DOJ and two judicial preclearance als (20 administrative objections from state-level in scope. Louisiana, a far smaller state, had a total of 21 preclearance which were followed closely by and Louisiana are state-level in scope. Texas of which were denials, three at the state (16 denials, two at the state level), Mississippi (15 denials, three South Carolina accounted level), and Georgia (14 denials, two at the state level). These five states together since 1995. denials of the preclearance for four-fifths

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2

NATIONAL COMMISSION ON VOTING RIGHTS 48 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2 NATIONAL COMMISSION ON VOTING RIGHTS 49

16 eds of thousands—or even eds of thousands—or Changes in House districts […] seemed motivated by partisan and racial Changes in House districts […] seemed motivated by partisan and Voters of Women Payne of the League of testified Dierdre gerrymandering,” Mississippi at the NCVR Mississippi state hearing. “As the redistricting process unfolded, we saw there would be no transparency. we saw there would be no transparency. “As the redistricting process unfolded, First, Section 5 preclearance denials were documented determinations by either the denials were First, Section 5 preclearance federal court. Any administrative determination could Department of Justice or a three-judge unlike typical litigation challenging court, meaning that, de novo by a three-judge be reviewed to defer and was not required record federal agency decisions, the court began with a fresh had to hew closely The DOJ therefore of the law. fact findings or interpretation to the DOJ’s - of a surro the role to how the D.C. Court would construe the law and the facts—assuming gate for the D.C. Court—when making administrative determinations. millions—of minority citizens in the affected state. millions—of minority plans (eight of implementation of 58 redistricting denials blocked the These 113 preclearance jurisdictions’ methods of election/selection (one at the state level); 20 changes to which were or de-annexations involving seven jurisdictions; of which was at the state level); annexations level); and four changes affecting bilingual on ballot access (10 at the state 20 restrictions (one at the state-level). procedures plans and method of denials (redistricting dilution was the issue in most preclearance Vote denials concerned nearly one-quarter of all preclearance election changes). At the same time, state level, at the ballot access. A number of these denials were discrimination in restricting such as photo iden- voting law changes, recent and included some of the most controversial to early voting in Florida. and cutbacks Texas and South Carolina in requirements tification as Section 5 in dealing to be as effective to be seen whether Section 2 will prove It remains private citizens and At a minimum, the loss of Section 5 has required with such problems. Section of litigating (joined by the DOJ) to assume the considerable burden civil rights groups and North Carolina. 2 ballot access challenges in Texas a nationwide sample of jurisdictions, but denials do not represent Section 5 preclearance for a number of important reasons. to the national picture highly relevant they are About a fifth (21) of the 113 total preclearance denials concerned at the state voting changes total preclearance (21) of the 113 About a fifth In the case of plans or state laws of general applicability. redistricting level—either statewide concerns plans, the of districts often focused upon a limited number statewide redistricting plan represented for a statewide redistricting denial but a preclearance or geographic areas, minority representation or deliberately restrict the plan would reduce a determination that was denied preclearance The other state-level laws for which the state as a whole. across state an entire across to the ballot, and applied generally minority voters’ access restricted of hundr to affect the electoral opportunities and had the potential - - ful Section 2 cases—is a very conservative measure of the concentration of voting discrimina measure ful Section 2 cases—is a very conservative denial would have resulted blocked by a preclearance tion. Not every voting change that was reduced be no doubt that Section 5 significantly can in a successful Section 2 case, but there is true based solely upon the jurisdictions. This the need for Section 2 suits in the covered effect Section so the case if the deterrent it is even more denials, and of preclearance record as discussed in Chapter 3. credited, is properly 5 had on state and local decision-makers PROVISIONS ASSISTANCE THE LANGUAGE UNDER LITIGATION III. OF THE VRA to oral and/or have been 48 cases involving successful claims relating Since 1995, there have been ten non-litigation there VRA. Additionally, written language assistance under the Most of language assistance provisions. of the VRA’s settlements involving enforcement under Section 4(f)(4), brought under Section 203, but some were brought these matters were by resolved were Section 4(e), Section 2, and Section 208. The vast majority of these cases listed 4 and are summarized in Table or other settlements. These cases are consent decrees individually in the Supplemental Online Appendix. Second, vote dilution objections to redistricting plans and method of election changes of election changes and method plans to redistricting vote dilution objections Second, areas. relevant polarized in the findings that voting was racially in significant part upon rested upon generalized that does not rely is a fact-based determination Racially polarized voting litigation. These findings of it is a key factor in Section 2 vote dilution assumptions, and the Department of considerable quantitative analysis by reflected racially polarized voting form in objection letters. This “screening” in a summary expressed were Justice, even if they to believe that many of the voting an important reason voting provides for racially polarized have been found to denials would otherwise Section 5 preclearance changes blocked by violate Section 2. show that the jurisdictions since 1995 denials in the covered the 113 preclearance Third, of all success about three-fourths jurisdictions—representing in the covered Section 2 record

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2

NATIONAL COMMISSION ON VOTING RIGHTS 50 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2 NATIONAL COMMISSION ON VOTING RIGHTS 51 & Case a Affected Language Minority Group/ Language 1 Bengali 7 Chinese 1 Creole 1 Ilocano 1 Japanese 2 Keresan 2 Korean 1 Lakota 3 Navajo 46 Spanish 1 Tagalog 4 Vietnamese 1 Yup’ik Yup’ik Spanish 4 Chinese; 1 Korean; 8 Spanish; 1Tagalog; 2 Vietnamese 3 Spanish 1 Creole; 1 Chinese; 1 Ilocano; 1 Japanese Spanish 1 Chinese; 4 Span- ish; 1 Vietnamese Spanish 2 Spanish 3 Navajo 1 Keresan; 1 Bengali; 1Chinese; 11 Span- 1 Korean; ish Count Covered Under Covered Section 4 13 cases and 2 non- litigation settlements dealt with jurisdictions under Sec- covered tion 4 Yes Yes No No No No No No No No One case involved a jurisdiction covered (Count for the State) Subjurisdictions (Count for the State) Involved (1) State (1) Cochise County (10) Alameda County (two cases); Riv- erside County; San Benito County; San County; and the Diego County; Ventura Cities of Azusa, Paramount, Rosemead, (all cities in Los Angeles and Walnut County) (4) Miami-Dade County; Orange County; County Osceola County; Volusia (1) State (1) Kane County City (4) City of Boston; City of Lawrence; (non- Worcester of Springfield; City of litigation) (1) Colfax County (2) Passaic County and City of Passaic; Salem County and Penns Grove (3) Bernalillo County; Cibola County; San- doval County West- (13) Orange County; Suffolk County; City (Kings, chester County; New York & Queens Counties); New York New York, City (Queens County); Duchess, Mont- Putnam, Rockland, Schenectady, gomery, Sullivan, & Ulster Counties (separate with State AG); non-litigation agreements School District Union Free Brentwood 48 cases (2 state-level); 10 non-litigation 48 cases (2 state-level); settlements State Alaska Arizona California Florida Hawaii Illinois Massachusetts Nebraska New Jersey New Mexico New York TOTAL (16 States) Table 4: SuccessfulTable Bilingual Election Cases: January 1995 to June 2014

18 & Case a Affected Language Affected Minority Group/ Language Count 2 Spanish 2 Spanish Lakota 10 Spanish; 1 Vietnamese Spanish able 4 involving minority Covered Under Covered Section 4 No No Yes Yes No These responsibilities are widely understood by the affected are These responsibilities 17 (Count for the State) Subjurisdictions the State) Subjurisdictions (Count for Involved (2) Cuyahoga County; Lorain County (2) Cuyahoga County; Lorain County (2) Berks County; Philadelphia settle- (1) Shannon County (non-litigation ment) (11) Brazos County; Ector County; Fort Bend County; Galveston County; Hale County; Harris County; City of Earth (Lamb County); Littlefield Independent School District (ISD); Post ISD; Seagraves ISD; Smyer ISD County (1) Yakima State Ohio Pennsylvania South Dakota Texas Washington in addition to English. than one language for which voting assistance was required a Some cases involved more jurisdictions. The DOJ individually notifies each political subdivision that comes under Sectionjurisdictions. The DOJ individually notifies assistance. and offers DOJ’s guidance and also provides 203 coverage of its responsibilities Sections 203, 4(f)(4) and 4(e) of the VRA place specific responsibilities upon election adminis- place specific Sections 203, 4(f)(4) and 4(e) of the VRA for a segment of the required assistance that is the effective written and oral trators to provide language minority population. Thus, there is little reason to provide the “benefit of the doubt” to election administrators in the “benefit of the doubt” to provide is little reason Thus, there required bilingual assistance that is specifically who fail to provide areas Section 203 covered understood as involving a choice to Instead, such noncompliance is better by federal law. for as long as possible, and it is fair to count such cases as evi- evade those responsibilities dence of voting discrimination. Most of the 48 cases and ten non-litigation settlements identified in T under Section 4(b) of the language assistance issues did not arise in jurisdictions covered and one each in Alaska, 15 did involve Section 4(b) jurisdictions: 11 in Texas VRA. However, once again stands out as hav- Texas and South Dakota. On this measure Arizona, New York, states. among the Section 4(b) covered ing the worst record by Section 4(b), the most successful cases, a total of 13, were the states covered Apart from 10 concerning counties City, two cases involving New York These included in New York. Attorney General), and (including seven non-litigation settlements initiated by the New York one against a school district. California (Alameda had 10, including six cases against counties Angeles County. being sued twice by DOJ) and four cases against municipalities within Los

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2

NATIONAL COMMISSION ON VOTING RIGHTS 52 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 2 NATIONAL COMMISSION ON VOTING RIGHTS 53 Compliance with 20 However, many jurisdictions that were sued lacked any many jurisdictions that were However, 19 program to identify the need for bilingual assistance in the first place, or to deploy competent to identify the need for bilingual assistance program for these The remedies locations. to appropriate numbers bilingual poll workers in appropriate - who is made re manager, a bilingual program typically included the designation of problems assistance where those areas to the community to identify sponsible for conducting outreach bilingual poll workers, and supervising their deployment. is needed, recruiting the jurisdictions, covered outside the Section 4(b) In a number of these cases brought certification to the court-ordered jurisdiction agreed Department of Justice and the defendant of the VRA. Federal of the jurisdiction for federal observer coverage pursuant to Section 3(a) at the critically important to monitor the quality of translations being provided observers were in a hostile treated polling places and to identify occasions upon which minority voters were or discriminatory manner. of VRA noncompliance that came to light in some of these cases was One additional area to allow language minority voters to their assistance of choice in the poll workers’ refusal the VRA, voters are polling place, including friends or family members. Under Section 208 of the person of their choice. assistance from generally entitled to receive Spanish was the language most often involved in these cases (46 of the 58). Asian languages of the 58). Asian in these cases (46 often involved the language most Spanish was an Alaskan Native lan- Native American languages in four cases; involved in 10 cases; were one case. in and Creole guage in one case; of written materials and the involved two basic issues: the translation These cases typically Some cases also involved claims to language minority voters. availability of oral assistance - by poll workers and elec to hostile treatment subjected voters were that language minority tion officials. were translated, while in other cases there were In some of these cases no written materials with quality of translated, or problems that were significant gaps in the types of documents - form of noncompliance to rem straightforward this is a relatively the translations. Fortunately, to do so. commitment is an enforceable once there edy, challenging oral assistance was most typically the more adequate to provide The failure policy is that targeting oral assistance of Justice’s issue in these cases. The Department most effective means of complying with the with a demonstrated need is the to precincts language minority requirements. Section 208 is particularly important in those jurisdictions that are not required to provide to provide not required Section 208 is particularly important in those jurisdictions that are for which translated written materials. It is also important to voters who speak a language language assistance. their jurisdiction to provide Section 203 does not require “I am a registered voter. I have a valid state ID. I speak reasonably well. I present myself reasonably well, and I got challenged for early voting. […] my address was correct. It matched my ID. And the woman said to me, ‘Well, are you sure this is all correct?’”

­– Testimony from Cynthia Spooner, former sworn deputy voter registrar and election precinct judge, about her experience voting in Harris County, Texas. (Texas NCVR hearing) PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 3 NATIONAL COMMISSION ON VOTING RIGHTS 55 - esult d as a r AND SECTION 5’S IMPACT ON MINORITY AND SECTION 5’S IMPACT , Section 2 of the VRA remains as a nationwide prohibition on voting dis- as a nationwide prohibition Shelby County, Section 2 of the VRA remains SHELBY COUNTY PHOTO CREDIT: SAMUEL WASHINGTON PHOTO CREDIT: of Section 5’s deterrent effect. And the flow of Section 5 submissions to DOJ enabled DOJ, deterrent of Section 5’s the status of voting practices time minority voters, and civil rights advocates to monitor in real voting discrimination has most often occurred. where in the areas After - against discrimi important and considerable safeguards crimination. While Section 2 provides minority voters. that Section 5 afforded the same level of protection nation, it does not provide The termination of Section 5 preclearance is having and will continue to have an immense is having and will The termination of Section 5 preclearance in Chapter 1, Section 5 was focused on those impact on minority voting rights. As discussed characteristics: first, these jurisdictions had a long states and localities with two defining and second, these jurisdictions evidenced an and pervasive history of voting discrimination; under Section 5. In other ongoing pattern of voting discrimination after they became covered voting discrimination had of the country where Section 5 was focused on the areas words, been and continues to be most prevalent. until June 25, 2013 when Shelby County was handed down, Section 5 objections 1965 From D.C. prevented denials by the federal district court in Washington, by DOJ and preclearance covered Moreover, being implemented. thousands of discriminatory voting changes from boar jurisdictions left other potentially discriminatory practices on the drawing I. This chapter provides an overview of the remarkable and enormous impact Section 5 of the and enormous impact Section of the remarkable an overview This chapter provides to participate in our on the opportunity of minority citizens Rights Act (VRA) has had Voting has been lost as insight into what Thus, this chapter provides political processes. Nation’s Holder. This chapter also dis- decision in Shelby County v. Court’s of the Supreme a result federal observer author (DOJ)’s effect on the Department of Justice cusses Shelby County’s ity under Section 8 of the VRA. CHAPTER 3 CHAPTER Result of Been Lost as a What Has Holder v. Shelby County ELECTORAL OPPORTUNITY - ovides a good , pr

7 - redistrict and the State’s 5 This included objections to over 500 This included objections 1 When Section 5 coverage was nearing its end, When Section 5 coverage was nearing 4

3 Much of this activity occurred between 1982 (when Congress enacted 1982 (when Congress between occurred Much of this activity In the years in between, DOJ interposed scores of objections to voting of objections to In the years in between, DOJ interposed scores 2 6 the penultimate reauthorization of Section 5) and 2006 (when the last reauthorization oc- reauthorization Section 5) and 2006 (when the last of the penultimate reauthorization interposed involving were 700 separate objections in that time period approximately curred); plans and 400 redistricting objections to approximately over 2,000 voting changes, including another 400 election method changes. changes adopted by Texas and by its counties, cities, school districts, and special districts, and by its counties, cities, school changes adopted by Texas plans. particularly to discriminatory methods of election and redistricting Each objection, by itself, typically benefited thousands of minority voters, and many objec Each objection, by itself, typically benefited of thousands, or even (for objections to statewide tions affected tens of thousands, hundreds an immense investment of public It would have required changes) millions of minority voters. the filing of individual lawsuits. have accomplished this through to and private resources is illustrative. When Section 5 coverage began in 1975, The application of Section 5 to Texas the Attorney 1976) to several General interposed objections (in December 1975 and January voters in the State to re- all registered have required state laws, including one that would dis- the to be eligible to vote and another that sought to redraw to continue in order register tricts for the State House of Representatives. redistricting plans and nearly 800 election method changes (such as the adoption of at-large 800 election method changes (such plans and nearly redistricting to exist- requirements numbered-post the addition of majority-vote and election systems and ing at-large systems). the federal court in Washington, D.C. issued decisions in August 2012 denying preclearance D.C. issued decisions in August 2012 denying preclearance the federal court in Washington, for in-person voting, requirement photo identification (ID) to Texas’ ing plans for Congress, the State House of Representatives, and the State Senate (finding the State House of Representatives, ing plans for Congress, showed signs of intentionally discriminatory and that the third that two of the plans were discriminatory intent). Section 5’s Deterrent Effect: South Carolina’s Photo ID Law and Photo ID South Carolina’s 5’s Deterrent Effect: Section Restrictions Voting North Carolina’s of impact on minority electoral opportunity was not limited to the hundreds Section 5’s the enactment of many other potentially dis- denials: Section 5 also deterred preclearance adoption of a photo ID law in 2011, and the State’s criminatory changes. South Carolina’s subsequent development of administrative rules for implementing that law illustration of this preventative power. illustration of this preventative Section 5 Preclearance Denials 5 Preclearance Section a very large amount of voting for preventing Section 5 was responsible By any measure, letters 1,000 determination DOJ issued approximately 1965 to 2013, discrimination. From voting changes. for over 3,000 denying preclearance

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13

8

15 ement because it was equir which could be “any reason” that which could be “any reason” However, the court denied the State’s denied the State’s the court However, 11 14 Nikkey Finney, an award-winning American poet and an award-winning Nikkey Finney, attendees to “Please urged resident South Carolina be silent.” get involved, don’t However, However, 10 Thus, the court concluded that “Act R54 will deny no voters the ability to Thus, the court concluded that “Act R54 will deny no voters the ability to 12 DOJ explained in its determination letter that the data presented by the State indi- that the data presented DOJ explained in its determination letter 9 South Carolina sought preclearance from DOJ, and in December 2011 the Department DOJ, and in December 2011 the from sought preclearance South Carolina objected. vote and have their votes counted if they have the non-photo voter registration card…” vote and have their votes counted if they have the non-photo voter registration South Carolina clarified and significantly South Carolina im- expanded the scope of the “reasonable was pediment” exemption while the litigation the district court found ongoing. As a result, that the exemption would “permit voting by voters who have the non-photo registered [used for voting under card voter registration law], so long as the voter the pre-2011 for not having obtained a photo ID,” states the reason unclear what the exemption covered. then sought preclearance South Carolina D.C. the federal court in Washington, from that After trial, the district court agreed less likely to African-American voters were and that possess photo ID than white voters, in burdens significant encounter would voters attempting to obtain a photo ID. Prior to 2011, South Carolina had a voter ID requirement for in-person voting but not a photo voting but not for in-person ID requirement had a voter South Carolina Prior to 2011, - (automati card registration either their voter to present required were Voters ID requirement. ID card. license or state driver’s Carolina voters) or a South all registered cally distributed to as a polling place ID, card to the registration as R54) deleted reference The 2011 law (known license or state ID driver’s Carolina set of photo IDs instead (a South and specified a limited could be obtained only by that card or a new photo registration passport, military ID, card, ID present photo from having to voters The 2011 law also exempted visiting a county office). to obtaining that ID. impediment” a “reasonable if the voter had encountered request to preclear the law for use in the November 2012 election because the State did not the law for use in the November 2012 election preclear to request the provision before “reasonable impediment” properly implement the have sufficient time to effect of the law. election, and thus mitigate the otherwise retrogressive was not untrue. Based principally upon the State’s inclusion of the “reasonable impediment” provision in the impediment” provision inclusion of the “reasonable Based principally upon the State’s the district court of what it would allow, subsequent interpretation 2011 law and the State’s the 2011 law for elections held after 2012. precleared cated that African-American voters were significantly less likely than white voters to have the significantly less cated that African-American voters were impediment” exemption “reasonable and that the law’s photo ID specified by the 2011 law, of changing to a photo ID r did not mitigate the negative effects -

16 [O]ne cannot doubt the vital function that Section 5 of the Voting Rights Act Rights Voting 5 of the the vital function that Section [O]ne cannot doubt South Act, Rights Voting process under the Without the review has played here. restrictive. certainly would have been more voter photo ID law Carolina’s seeking to structure a law have commented that they were Several legislators were added during The key ameliorative provisions that could be precleared… And shaped by the need for pre-clearance. that legislative process and were particularly the Act R54, key provisions of the evolving interpretations of these subsequently presented to this Court were reasonable impediment provision, efforts to satisfy the requirements of the driven by South Carolina officials’ Voting Rights Act… force South Carolina to jump through The Section 5 process here did not the continuing Act R54 demonstrates the history of Rather, unnecessary hoops. and hence in deterring problematic, Act Rights Voting utility of Section 5 of the changes in state and local voting laws. encouraging nondiscriminatory, Section 5 and Transparency Section up- a comprehensive, An important but less obvious aspect of Section 5 was that it provided jurisdictions. Each week, DOJ published to-date inventory of voting changes in the covered identifying the a notice (available on its website) that listed all new Section 5 submissions, affected jurisdiction and the types of voting changes being submitted. and civil rights advocates jurisdictions, in the covered DOJ, citizens residing Accordingly, make informed evaluations status of election practices in these areas, could track the current for this is no other source There as appropriate. of what was happening, and then respond In contrast, the situation in North Carolina, discussed in more detail later in this chapter, detail later in this chapter, in more discussed In contrast, the situation in North Carolina, in decision does not play a role Section 5 deterrence illustrates what could occur now that Court, the North the Supreme making. In 2013, as Shelby County was pending before was uncertain. photo ID bill whose future General Assembly was considering a Carolina moved to enact not After the Shelby County decision, the General Assembly immediately in including a reduction but a host of other voting restrictions, only a photo ID requirement part of early voting, a prohibition as on same-day voter registration early voting, a prohibition on counting ballots cast in the of 16 and 17 year olds, and a prohibition on pre-registration precinct. but the wrong county correct U.S. District Judge Bates, joined by District Judge Kollar-Kotelly, wrote separately to under wrote Kollar-Kotelly, by District Judge Judge Bates, joined U.S. District led to the State seeking to imple- that the process Section 5 played in the central role score photo ID law: rather than a discriminatory, ment a nondiscriminatory,

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17a , photo , otest to elec- Shelby County

18 e an election to pr

17 In testimony to the NCVR, Alabama State Senator Hank Sanders called Alabama In testimony to the NCVR, Sanders 21st century.” test of the “the literacy new photo ID law Alabama’s 5 but the state avoided seeking Section 2011, noted that the law was enacted in After object. because it expected DOJ would preclearance ID is now being implemented in the State. DOJ also found it particularly significant that African Americans constitute a slight majority of voting age population and thus, in the context of racially polarized voting, the jurisdiction’s particularly dependent on voter turnout.” “electoral outcomes are a retrogressive effect on DOJ determined that the change in the election date would have a retrogressive of showing the absence of a dis- minority voters and that the State had not carried its burden reviewed turnout data for Augusta- to effect, the Department criminatory purpose. With regard that while bothRichmond for county primary elections and November elections, and found forAfrican Americans and whites turned out at a lower rate on the primary date, the drop-off Departmentthe purpose, to With regard larger. substantially been had voters African-American and that Augusta-Richmond’s pretextual for the change were offered found that the reasons it had previously governing had actually opposed the change. DOJ further noted that board interposed a Section 5 objection to a similar election-date change for Augusta-Richmond. Augusta-Richmond, Georgia a Augusta-Richmond, Georgia is one location where The consolidated city and county of is now being implemented in the aftermath of Shelby voting change blocked by Section 5 amended a statewide law so as to move County. In 2012, the Georgia General Assembly to the date years November of even-numbered from the election date for Augusta-Richmond conducted. On December 21, years when county primary elections are in even-numbered 2012, DOJ interposed a Section 5 objection. tion officials or challenge the change in court. tion officials or challenge information since no other federal law requires states or localities to identify or report voting to identify or report states or localities law requires since no other federal information this either. not appear that any state requires changes, and it does With likely that mi- of this information, it is now less Shelby County decision and the loss the is imminent or implementation nority voters will learn before of discriminatory voting changes manner, is moved or closed in a discriminatory For example, if a polling place even underway. befor not find this out until it is too late minority voters might Changes Blocked by Section 5 that Now Are Being Section Changes Blocked by Implemented exas. and the elec- 19

21 nment prepared to nment prepared ecent years may now be DOJ also found “overwhelming

21a 23 A federal district court disagreed, A federal district court African-American candidates did quite well in the African-American 18a 20

22 tion was held on the county primary date. tion was held on the evidence that both the campaign leading to the [2011 initiative] election as well as the issue evidence that both the campaign leading to the [2011 initiative] election as all of its support itself carried racial overtones with the genesis of the change and virtually white residents.” coming from Withto implement the 5-2 system. the demise of Section 5, the ISD is once again planning The 5-2 system is being challenged in a Section 2 lawsuit. In 2014, with Section 5 no longer in effect, the Augusta-Richmond gover Augusta-Richmond in effect, the Section 5 no longer In 2014, with sued claiming that residents the county primary date. African-American hold its election on continued to prevent and that Section 5 therefore Shelby County only applied prospectively, being implemented. the date change from first election, allaying immediate concerns about the effect of this change. However, time will time immediate concernsfirst election, allaying of this change. However, about the effect voter turnout in line with the historical patterns. more More elections are tell whether future about the any lingering doubt decision appears to have removed the federal court’s generally, denials. preclearance decision to post-2006 applicability of the Shelby County retroactive District, Texas Beaumont Independent School Independent School District (ISD) in T Another such example involves the Beaumont how advances made in r The events involving the ISD also illustrate after Shelby County. reversed the ISD to change from case ordered desegregation In 1985, a federal court in a school district seats (“5–2”) to a system of seven single-membera system of five districts and two at-large in which voters authorized the ISD the ISD held an initiative election districts. In 2011, however, and, on back to 5–2 was submitted for preclearance to return to the 5–2 system. The change a Section 5 objection to the change. December 21, 2012, DOJ interposed Texas photo ID requirement requirement photo ID law is discussed in detail in Chapter 6. This Texas’ Litigation regarding was denied (first by DOJ and then was enacted in 2011, but because Section 5 preclearance - explained that a 5-2 system would lead to a retro the Department In its objection letter, system of seven Under the pre-existing in African-American electoral opportunity. gression (in the context of racially polarized voting in ISD districts, African Africans had the opportunity analysis the 5-2 system, DOJ’s members; under elections) to elect a majority of the board of the seven the opportunity to elect only three showed that minority voters would have of the (African Americans would likely have an electoral opportunity in three members board new five districts but not in elections for the at-large seats).

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24 Voting Rights Attorney loss of Section 5 at the California Robert Rubin testified about the impact of the NCVR Voting discriminatory voting difficult to challenge hearing. “Without Section 5,” stated Rubin, “it would be extremely ANDRIA LO these go into effect.” PHOTO CREDIT: changes before , case-by-case litigation is now the only tool for challenging discrimina is now the only tool for challenging- , case-by-case litigation After Shelby County that may be used for this purpose, Section 2 is the principal federal law tory voting changes. and 203 of the VRA to challenge under Sections 4(e) although litigation also may be brought language-assistance restrictions. that case-by-case litigation is determined in 1965 As discussed in Chapter 1, Congress this of the country where ongoing voting discrimination in the areas inadequate to address identified by the Section 4 coverage i.e., the areas discrimination has been most prevalent, deciding that Section 5 this question and, in again considered formula. In 2006, Congress the rights of protect that case-by-case litigation is “ineffective to is still needed, reaffirmed areas. minority voters” in the specially covered Why Section 2 Does Not Adequately CompensateWhy Section loss 5’s for Section by the court in Washington, D.C.) it was not implemented in the 2012 elections. After Shelby in the 2012 elections. not implemented D.C.) it was in Washington, by the court the law are Section 2 lawsuits challenging has begun implementation while County, Texas moving forward. While Section 2 does offer a potentially powerful remedy, there are a number of significant are there remedy, powerful While Section 2 does offer a potentially to protection the same level of to it, and Section 2 clearly does not afford difficulties inherent observation in South paraphrase Chief Justice Warren’s minority voters that Section 5 did. To decision has essentially Katzenbach (quoted in Chapter 1), the Shelby County v. Carolina back to the perpetrators of voting discrimination. shifted the advantage of time and inertia - - - The reluc 28 That court also 25 ed jurisdictions Furthermore, obtaining Furthermore, 27

26 ing practice in question. The purpose and effect of the change must then be investigated and change must then be investigated The purpose and effect of the ing practice in question. needed to pursue litigation. resources plaintiffs or DOJ must have the analyzed, and minority time-consuming, and expensive. For can be slow, Section 2 litigation is often complex and , the legislative history when it decided Shelby County example, as noted by the D.C. Circuit included “a Federal Judicial Center study finding that voting for the 2006 reauthorization case and rank work than an average district court four times more nearly rights cases require types of cases analyzed.” sixty-three as the fifth most work-intensive of the A key distinction between the Section 2 and Section 5 remedies is the nature of the review of the review is the nature 5 remedies Section 2 and Section between the A key distinction required jurisdictions were essentially automatic (since were reviews Preclearance process. accustomed to doing so by the time changes, and generally had become to submit all voting through was largely handled by DOJ preclearance Shelby County was decided). In addition, to bring a Section 2 chal- not involve litigation. In order that did an administrative process vot of the must first become aware hand, the minority community or DOJ lenge, on the other A second important distinction between Sections 2 and 5 is that the cover A second important distinction between minority plaintiffs and whereas reviews in Section 5 preclearance of proof had the burden in Section 2 cases. It is generally understood that the party of proof DOJ have the burden prevailing. faces a higher level of difficulty in of proof bearing the burden 2 of voting changes but, when a Section review pre-implementation Section 5 required Third, voting change while the litiga- to implement the disputed case is filed, the jurisdiction is free injunction. Thus (as noted able to obtain a preliminary tion is ongoing, unless plaintiffs are in several elections in 2013 and 2014 its photo ID requirement has enforced above), Texas did not implement the Texas is being litigated under Section 2. although the requirement had not been granted. Shelby County because preclearance before requirement challenging, and uncer injunction in a Section 2 case is burdensome, Obtaining a preliminary plaintiffs to bear the requires tain, even in the most meritorious cases. Moving for such relief until the evidence is sufficiently developed. relief expense of litigation, and to delay requesting injunction, plaintiffs often must demonstrate that to obtain a preliminary In addition, in order at trial, and even with that, they must also sat- they have a substantial likelihood of prevailing for an injunction to be granted. isfy several other conditions in order preliminary relief may require plaintiffs to overcome a judge’s disinclination to grant an injunc- a judge’s plaintiffs to overcome may require relief preliminary information at trial. the court has been able to evaluate all the relevant tion before tance of federal courts to delay a scheduled election or order an interim remedy into place via interim remedy an tance of federal courts to delay a scheduled election or order noted that Congress heard testimony “from witnesses who explained that ‘it is incredibly dif- ‘it is incredibly witnesses who explained that testimony “from heard noted that Congress needed’ to pursue a section 2 lawsuit, resources the ficult for minority voters to pull together communities.” particularly at the local level and in rural

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30 . In 2003, esent, and DOJ then 29 e pr et, when DOJ

esponded by 33 equest. evail at trial. Y

34 In 2003, the district court ruled in favor of DOJ after In 2003, the district court ruled in favor 31 AND THE FEDERAL OBSERVER PROGRAM THE FEDERAL OBSERVER AND and in 2004 the Fourth Circuit Court of Appeals affirmed that ruling. and in 2004 the Fourth Circuit 32 SHELBY COUNTY Since 1965, federal observers have played a key role in voting rights enforcement. As dis- in voting rights enforcement. Since 1965, federal observers have played a key role of federal observers may deter misconduct by election cussed in Chapter 6, the presence problems do arise on Election Day when if officials and others at the polls. Furthermore, inform DOJ of what is hap- to promptly required the observers are present, observers are election officials to attempt to pening so that DOJ can immediately contact the responsible resolved and not identified by observers are situation. In addition, if problems the remedy II. II. this indicated that it was highly likely the Department would pr this indicated that it was highly likely injunction in advance of the November 2002 general election, moved again for a preliminary to grant relief. the court again refused a preliminary injunction is particularly impactful as that is the only realistic way to stop some way to stop some is the only realistic impactful as that is particularly injunction a preliminary can no longer be used. practice the pre-existing where redistricting) changes (such as at-large South Carolina’s County, that was litigated against Charleston The Section 2 suit relief in a voting case. After preliminary the difficulty of obtaining election system illustrates of the June injunction in advance 2001, DOJ moved for a preliminary filing suit in January denied the r County Council, and the district court 2002 primary for the trial, This Charleston County example also highlights how Section 2 and Section 5 differ This Charleston County example also at-large system violated Section 2, ruling that the County Council’s after the district court’s same at-large method. DOJ initially r the county school district adopted the a Section 5 objection less than nine additional information, and then interposed requesting it this change was blocked by Section 5 before months after the initial submission. Thus, of costly litigation. could be implemented and without years Lastly, the Section 5 “effect” standard was specifically aimed at preventing backsliding (ret- preventing backsliding was specifically aimed at the Section 5 “effect” standard Lastly, employed by Section 2 focuses on equal electoral standard the results whereas rogression), to chal- in one sense, in that it allows plaintiffs is broader standard The Section 2 opportunity. On the other hand, the results discriminatory but not retrogressive. lenge practices that are changes than did the complex analysis to stop retrogressive a more may require standard Section 5 standard. straightforward relatively moved for partial summary judgment, and in July 2002 the court found that the Department the court found that the Department judgment, and in July 2002 moved for partial summary a Section 2 violation; for demonstrating of the Gingles preconditions all three had proven elements of a Section 2 violation wer the court thus concluded that the central are significant and ongoing, the post-election written reports provided by the observers can by the reports provided written ongoing, the post-election significant and are the basis for DOJ litigation. provide by for sending observers was provided principal authority 1, DOJ’s As discussed in Chapter continu- under Section 4, but DOJ’s covered observers in areas Section 8, which authorizes . The Department is in doubt because of Shelby County upon that section ing ability to rely decision Court’s since the Supreme to any of the Section 4 areas has not sent observers the Section 8 that the decision effectively has terminated has concluded and DOJ apparently observer program. to jurisdictions designated After Shelby County, DOJ still has the authority to send observers in voting rights litigation (where Section 3(a) remedy by federal courts that made use of the in law- been ordered The Section 3(a) designations have have not expired). those remedies language assistance requirements. the VRA’s DOJ to enforce by suits brought

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41 43 olina

39

37 The process behind The process 40 om the North Car followed by the implementation of followed by the implementation 35 World in a Microcosm World Shelby It was introduced on April 4, 2013 and passed the It was introduced In 2009, the legislature passed a bill that allowed for passed a In 2009, the legislature 42 36 The state witnessed another increase in voter participation in the 2008 presidential in the 2008 presidential in voter participation The state witnessed another increase 38 having to go through pre-clearance [under the Voting Rights Act] if it wasn’t necessary and Rights Act] if it wasn’t [under the Voting pre-clearance having to go through would be subject to federal scrutiny.” having to determine which portions of the proposal nated much of the voting rights progress made over the prior decade. nated much of the voting rights progress pre-registration of 16 and 17 year-olds with overwhelming bi-partisan support. with overwhelming bi-partisan of 16 and 17 year-olds pre-registration makes North Carolina the perfect case study for what the Shelby decision means. makes North Carolina revealed a new, heavily amended H.B. 589. The bill had evolved from a stand-alone voter ID heavily amended H.B. 589. The bill had evolved from a new, revealed in the legislative process for a stand-alone voter ID bill. The original H.B. 589 was indeed in the legislative process including student and employee IDs. North Carolina led to increasing voter participation rates in North Carolina, making the state rates in North Carolina, voter participation led to increasing North Carolina slightly during the 2012 presidential election (68.3 percent) the voter participation rate of election (68.3 percent) slightly during the 2012 presidential However, no action would be taken for months—in fact, until one month after the decision in no action would However, House on April 24, 2013. At that point, the 16 page bill was moved fr same-day voter registration in 2007. same-day voter registration only a voter identification bill was being contemplated in North only a voter identification bill was being Shelby County, Before During this time, the voter participation percentage in North Carolina increased steadily from from steadily increased in North Carolina percentage During this time, the voter participation For example, in 2001 the state implemented early voting For example, in 2001 a model for the country in creating a voting system that brought new voters into the process. new voters into the process. system that brought a voting in creating a model for the country election when the rate increased to 69.6 percent. Although the voter participation decreased participation decreased Although the voter to 69.6 percent. election when the rate increased opened the door for a new legislature to completely reverse course, passing a bill that elimi- to completely reverse opened the door for a new legislature the turnaround and the passage of the most comprehensively restrictive law in the country law in restrictive and the passage of the most comprehensively the turnaround tion. 54.2 percent in the 2000 presidential election to 60.4 percent in the 2004 presidential elec- in the 2004 presidential election to 60.4 percent in the 2000 presidential 54.2 percent North Carolina The Post- 2013: State House to the North Carolina Senate. State House to the North Carolina . The reason for the delay was no secret: according to Senator Tom Apodaca, to Senator Tom according for the delay was no secret: Shelby County. The reason headaches of Chair of the Senate Elections Committee, the Senate did not want “the legal Carolina, and, Speaker Thom Tillis assured voters that the process of drafting would be a and, Speaker Thom Tillis the process voters that Carolina, assured Case SpotlightCase Reforms enacted in Reforms enacted in Participation: Voter Leader in Increasing is a Carolina 2000 - 2010, North filed as a stand-alone voter ID bill that allowed for a wide range of acceptable identification, filed as a stand-alone voter ID bill that allowed for a wide range of acceptable Additionally, House Elections Committee Chairman David Lewis called for open negotiations Additionally, African Americans in North Carolina was the highest of any state at 70.2 percent. was the highest of any African Americans in North Carolina Accordingly, on July 23, 2013, two days before the end of the legislative session, the Senate on July 23, 2013, two days before Accordingly, Shelby County v. Holder in 2013 The decision in Shelby County v. And Then Shelby County Came Down…: “deliberative, responsible and interactive approach” and “slow walk…through the House.” and “slow walk…through and interactive approach” “deliberative, responsible bill to an omnibus bill, packed with multiple voting restrictions. The Senate version, now 56 pages long, reduced early voting by one week, eliminated Sunday voting, eliminated same day registration, prohibited the counting of out-of-precinct provisional ballots and eliminated pre-registration for 16-17 year olds.44 Additionally, the new bill limited the forms of accept- able photo ID to (1) a North Carolina driver’s license; (2) a special (non-operator’s) ID issued by the North Carolina DMV; (3) a U.S. passport; (4) military ID; (5) veteran’s ID; (6) a tribal ID (from a federally or state-recognized tribe); and (7) a driver’s license or non-operator ID issued by another state but only if the voter had registered within 90 days of the election.45

During hastily held hearings in the Senate, opponents of the bill both testified and produced evidence that the restrictive changes would have a damaging effect on African American voters. Despite the concerns raised by legislators opposed to the new omnibus bill, the new H.B. 589 passed the Senate and the House without a single supporting vote from an African American legislator.46 It was signed into law by Governor McCrory on August 12, 2013.47

The Upshot: Without Section 5 in its way, the North Carolina legislature was able to pass measures that clearly threatened, and indeed were likely designed, to reverse a historic rise in voter engagement in one fell swoop, without having to provide any justification for the mea- sures or any meaningful review. The new law is now being challenged in Section 2 litigation, and may not be fully addressed until after the 2014 election.

PHOTO CREDIT: ERIC PRESTON

“As elections administrator for Guilford County for 25 years, I never found a compelling public interest that justified the voter ID requirements of House Bill 589 nor any of the other rollbacks of voting opportunities that had been granted voters during the past 20 years...”

­– Testimony from George Gilbert, economist and former director of elections for Guilford County, NC at the NCVR North Carolina hearing Without Section 5 in its way, the North Carolina legislature was able to pass measures that clearly threatened, and indeed were likely designed, to reverse a historic rise in voter engagement in one fell swoop, without having to provide any justification for the measures or any meaningful review. The new law is now being challenged in Section 2 litigation, and may not be fully addressed until after the 2014 election.

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Included was the determination that the use of English-only Included was the determination that 2 In 1965, Congress made extensive findings regarding how tests and devices, such as how regarding findings made extensive In 1965, Congress 1 laws and practices from being enacted and implemented. laws and practices from language minority constituted a test or device because it effectively excluded those citizens language minority constituted a test literacy tests and other laws and procedures, had been used to discriminate against African had been used to discriminate literacy tests and other laws and procedures, hearing in San Francisco about voter intimidation of Latino voters at the polls in Orange Cove, CA in 2012. hearing in San Francisco about voter intimidation of Latino voters at the polls in Orange PHOTO CREDIT: ANDRIA LO PHOTO CREDIT: LEFT: Aida Macedo, former Field Manager for the Election Protection Legal Committee, testified at the NCVR Aida Macedo, former Field Manager for the Election Protection LEFT: implementation of new mechanisms for disenfranchisement. This legacy of voting discrimina implementation of new mechanisms for disenfranchisement. This legacy in particular Latino, Native-American, and Asian-American voting age citizens because of in particular Latino, Native-American, subjected to new threats to their full enfranchisement. The ongoing protection of the Voting of the Voting to their full enfranchisement. The ongoing protection subjected to new threats Rights Act is vital to the inclusion of this community. and continues today. There is a serious concern that the remaining legal remedies after the legal remedies concern is a serious that the remaining There and continues today. and practices that have resulted in exclusion from the democratic process. Particularly in the democratic process. in exclusion from and practices that have resulted an ongoing threat to African-American inclusion in the political process. Though protection Though protection to African-American inclusion in the political process. an ongoing threat continually significant gains, African Americans are Rights Act has produced under the Voting from participating in the electoral process. participating in the electoral process. from elections in jurisdictions where more than 5 percent of the voting age citizens were of a single of the voting age citizens were than 5 percent more elections in jurisdictions where tion, like discrimination against African Americans in social and economic arenas, poses arenas, tion, like discrimination against African Americans in social and economic discrimination they had faced. I. AFRICAN AMERICANS I. Since the Civil War, African Americans have been targeted through discriminatory laws African Americans have been targeted through Since the Civil War, to African-American political participation has often been the Southern states, the response (VRA). decision will not be adequate to deter new discriminatory voting Holder decision will not be adequate to deter Shelby County v. Congress primarily (though not exclusively) has sought to protect in the Voting Rights Act in the Voting not exclusively) has sought to protect primarily (though Congress Protected Groups Protected Impact of Discrimination on Discrimination Impact of CHAPTER 4 CHAPTER As detailed below, voting discrimination affecting African Americans, Latinos, Native voting As detailed below, and persistent, has taken many forms, Americans, and Asian Americans is long-standing African Americans, Latinos, Native Americans, and Asian Americans are the four groups that the four groups Americans are Latinos, Native Americans, and Asian African Americans, Americans. In 1975, Congress expanded the Voting Rights Act to cover language minorities, Rights Act to cover expanded the Voting Americans. In 1975, Congress

5

3

4

7 Other Southern states followed suit and began a series of state 6 life of the nation, and they took full advantage of that right during the and they took full life of the nation, Following the Civil War, passage of the Fourteenth and Fifteenth Amendments and Fifteenth passage of the Fourteenth War, the Civil Following were elected in Americans African of Large numbers Reconstruction period. of all southern officeholders. However, following the Compromise of 1877, following the Compromise of 1877, However, of all southern officeholders. keep blacks, as well as various other minorities, from casting a ballot, including including from casting a ballot, as well as various other minorities, keep blacks, gave to black males a constitutional right to vote and take part in the civic gave to black males a constitutional generation-long effort both to disfranchise blacks and remove them from office generation-long effort both to disfranchise voting rights in the South, and white Democrats in that region embarked on a voting rights in the South, the early years of the First Reconstruction, when they composed 15 percent when they composed 15 Reconstruction, the early years of the First from using federal troops to protect black the Republicans agreed to refrain the poll tax, the literacy test, the grandfather clause, the good-character test, the good-character test, clause, the grandfather test, the literacy the poll tax, primary. and the white the understanding test, … In addition to violence and fraud, all manner of legal devices were used to … In addition to violence and fraud, registering to vote. During this period, literacy tests continued to be used in six of the 11 ex- registering rights movement confronted and fought a system of Jim Crow laws that permeated the fought a system of Jim Crow and rights movement confronted imposition of a literary test. systematically intimidated and precluded African Americans in the South from voting and voting African Americans in the South from systematically intimidated and precluded Reconstruction, as referenced in Chapter 1, followed the Civil War; in the second, the civil 1, followed the Civil War; in Chapter referenced Reconstruction, as For nearly 100 years, Southern states used the law and force to continually and systemati- For nearly 100 years, Southern the law and force states used state’s suffrage laws to remove blacks from political life. These new provisions included a life. These new provisions political remove blacks from suffrage laws to state’s the adoption of a poll tax, and the requirements, in the duration of residency sharp increase unless a white citizen would “vouch” for them. constitutional or statutory changes that instituted, in varying forms and combinations, poll constitutional or statutory changes that instituted, in varying forms and combinations, country, particularly in the South. country, cally exclude African-American citizens from registering and voting on a massive scale. registering from cally exclude African-American citizens - complex voter regis requirements, ballot laws, lengthy residency taxes, literacy tests, secret These practices tration systems, multiple voting-box arrangements, and white-only primaries. In 1890, Mississippi held the first constitutional convention for the purpose of altering the In 1890, Mississippi held the first constitutional Confederate states. Louisiana blocked African-American voters arbitrarily deemed to have Confederate states. Louisiana blocked African-American voters arbitrarily History and BackgroundHistory As noted in the 2006 National Commission on the Voting Rights Act report, National Commission on the Voting As noted in the 2006 The passage of the VRA is often referred to as the Second Reconstruction. The first Second Reconstruction. The first to as the VRA is often referred The passage of the “bad character” from voting, and African-American voters in Alabama were barred from voting from barred voting, and African-American voters in Alabama were “bad character” from

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4

NATIONAL COMMISSION ON VOTING RIGHTS 70 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4 71 State actors 8 Unable to keep up with the pace of 10 Wade Henderson, Executive Director of the Leadership Conference on of the Leadership Conference Henderson, Executive Director Wade at testimony received Civil and Human Rights and guest commissioner, JIMMY MCEACHERN hearing. PHOTO CREDIT: the NCVR Ohio regional -

12 For example, in 1927, 1944, and 1953, the Supreme 1944, and 1953, the Supreme For example, in 1927, 9

14 In fact, this increase was In fact, this increase 13 In the seven covered or partially In the seven covered 11 passage of the Act, only Florida, Tennessee, passage of the Act, only Florida, Tennessee, reappearing in slightly modified form after each ruling.” in slightly modified form after each reappearing relatively immediate, a testament both to relatively percent by the early 20th century. While more than 130,000 African Americans were Americans were than 130,000 African While more by the early 20th century. percent 1,342 by 1904. to that number dropped to vote in Louisiana in 1896, registered registration increased from 29.3 percent to percent 29.3 from increased registration more than one million new African-American more private litigation proved ineffective. The VRA was enacted to confront this long-standing, ineffective. The VRA was enacted to confront private litigation proved discrimination against African Americans. persistent, and all-encompassing voting registration rates rose from 6.7 percent to 6.7 percent from rates rose registration increased significantly. It is estimated that It is estimated significantly. increased - African-American regis recorded and Texas Following the passage of the VRA, African- achieve the same result of exclusion. result achieve the same and vote prompted officials to continue targeting African American voting strength through through officials to continue targeting African American voting strength and vote prompted cent in several Southern states; prior to the tration at those levels. on Civil Rights found that, by 1968, African- covered Southern states, African-American covered the much-needed protections provided by provided the much-needed protections the VRA and the devastating effects of prior tactics used by Southern states to curb registration and turnout,tactics used by Southern federal intervention and registration states to curb were successful in blocking African Americans from registering and voting. In Mississippi, registering African Americans from successful in blocking were 56.6 percent between the enactment of the 56.6 percent 59.8 percent. In Mississippi alone, African-American voter In Mississippi alone, African-American disenfranchisement. The U.S. Commission devised obstacle after obstacle aimed at preventing political participation by African political participation by obstacle aimed at preventing devised obstacle after voters were registered between 1964 and between registered voters were Court struck down three different versions of the “white primary” in Texas “because it kept Texas “because “white primary” in versions of the different three Court struck down VRA in August 1965 and January 1972. American voter registration was over 50 per American voter registration Americans. Legal victories eliminated one practice, and another would pop up in its place to another would pop up in its place to eliminated one practice, and Americans. Legal victories African-American voter turnout, which had exceeded 70 percent in the 1870s, dropped to 15 dropped in the 1870s, turnout,African-American voter which had exceeded 70 percent American voter registration and turnout American voter registration Yet, the large successes of the Voting Rights Act of 1965 in protecting the right to register the right to register of 1965 in protecting Rights Act of the Voting the large successes Yet, The mass exclusionary tactics employed in the South during the post-Reconstruction era post-Reconstruction South during the employed in the exclusionary tactics The mass 1972. - reen of reen - epresenta The 1980s 19

Moreover, Moreover, 22 21 ought during nor Dave T essional r

16 A landmark decision by the A landmark decision In fact, the number of 15 25 In addition, jurisdictions that 17 held that these and other electoral modifi- held that these and

“The number of Section 2 cases filed “The number of Section 2 cases filed 20 Many such discriminatory practices were thus imple- were Many such discriminatory practices 18 In Mississippi alone, the DOJ lodged 37 objections just 26

24

23 numbers and successful litigation. between 1982 and 1989 dwarfed the number of constitutional challenges br between 1982 and 1989 dwarfed the passed laws diluting the African-American vote often were noncompliant and did not submit vote often were passed laws diluting the African-American VRA. by the as required preclearance, mented and left unchallenged in the Southernmented and left unchallenged in the states. 2, voting rights litigation changed dramatically nationwide. under Section standard results of minority candidates at the local level. been critically important for the success municipal data from these states” show that “[n]early 65 percent of all changes from at-large at-large of all changes from these states” show that “[n]early 65 percent municipal data from in the South during the 1970s. Some jurisdictions implementing these tactics remained these tactics remained the 1970s. Some jurisdictions implementing in the South during saw an explosion in the number of these cases. saw an explosion in the number of these Louisiana proposed three districting schemes that would have left Orleans Parish, which was districting schemes that would have three Louisiana proposed sional district. uncovered, and even in covered jurisdictions citizens were unable to challenge long-standing unable citizens were jurisdictions and even in covered uncovered, adopted that Louisiana was able to elect its first African-American congr attempting to create racially discriminatory election structures. attempting to create criminatory districting schemes despite the existence of Section 2. Gover cations were subject to preclearance under Section 5 of the Act. under subject to preclearance cations were elections were attributable to litigation or settlements resulting from litigation.” from attributable to litigation or settlements resulting elections were tive since Reconstruction. the 1970s,” with one study finding “over 150 Section 2 challenges to municipal elections in the 1970s,” with one study finding “over alone. by Section 5 during this time period covered the eight states that were these changes to the United States Department of Justice (DOJ) or the district court for these changes to the United States Department the VRA needed to be extended and strengthened. As a result of the 1982 adoption of the result As a strengthened. the VRA needed to be extended and - African American by 1980, without a single majority African-American congres 55 percent white suburbs, and reapportionment and redistricting statutes. and redistricting reapportionment white suburbs, and It was not until after a federal court rejected Treen’s proposal and a new redistricting plan was and a new redistricting proposal Treen’s It was not until after a federal court rejected dilutive practices unless and until changes were proposed. were dilutive practices unless and until changes In some instances, officials made little effort to disguise their efforts to adopt racially dis In some instances, officials made little effort to disguise their efforts to dilutive tactics. At-large elections were seen as an especially effective way to prevent African- way to prevent especially effective seen as an were At-large elections dilutive tactics. Allen v. State Board of Elections State Board Court in Allen v. Supreme Still, Section 5 alone was not sufficient to eliminate certain discriminatory voting mechanisms discriminatory voting mechanisms was not sufficient to eliminate certain Still, Section 5 alone Section 5 objections increased after 1982 in spite of improved registration and turnout registration after 1982 in spite of improved Section 5 objections increased Still, the adoption of the Section 2 results standard did not stop states from creating and creating did not stop states from standard Still, the adoption of the Section 2 results Section 2 has since been widely used as a means to combat racial vote dilution and has Section 2 has since been widely used American candidates from getting elected, as were municipal annexations of predominantly municipal annexations of predominantly elected, as were getting from American candidates As jurisdictions adopted a range of ingenious dilutive tactics, Congress recognized that recognized dilutive tactics, Congress As jurisdictions adopted a range of ingenious

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4

NATIONAL COMMISSION ON VOTING RIGHTS 72 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4 NATIONAL COMMISSION ON VOTING RIGHTS 73 - - - African-American 35 - Among other proba 32 The court relied on evidence The court relied 31 In particular, jurisdictions in some jurisdictions In particular, 27 Based on the evidence it received, the 2006 it received, Based on the evidence 29 African-American poll workers. The court later found 36 Based on the court’s finding of a statewide policy of intentional finding Based on the court’s 33

30

37 For example, in Lancaster County, South Carolina, the General Assembly adopted the General Assembly South Carolina, County, For example, in Lancaster 28 This ruling propelled subsequent litigation challenging dilutive practices that resulted in subsequent litigation challenging dilutive practices that resulted This ruling propelled 34 lenged. jurisdictions were calculated decisions to keep minority voters from fully participating in the to keep minority voters from calculated decisions jurisdictions were has been and as will be detailed throughout this Report, continues plague to the American nated against African-American voters. A series of cases brought in the 1980s aided in in the A series of cases brought nated against African-American voters. political process.” more than 100 Alabama jurisdictions changing their method of election. than 100 Alabama jurisdictions changing more recently there has been a resurgence in barriers African-American to participa voter breaking apart some of Alabama’s most overt racially discriminatory electoral schemes. In apart some of Alabama’s breaking by the state. pointing “disproportionately too few” pointing “disproportionately plaintiffs in Alabama also challenged the discriminatory appointment of poll workers under plaintiffs in Alabama also challenged staggered terms for at-large seats on the local area school boards in 1972 and again in 1976 school boards seats on the local area terms for at-large staggered Despite these successful challenges discriminatory to the laws over past voting 50 years, Discrimination against African Americans did end not with the passage the VRA, of and as and 1984 following the DOJ’s initial objection. the DOJ’s and 1984 following a seminal 1986 case, African-American plaintiffs challenged the use of at-large elections for a seminal 1986 case, African-American and vote in large numbers.” County. Crenshaw v. commissioners in nine counties in Dillard circumstances attempted to re-implement discriminatory tactics previously used to dilute tactics previously discriminatory re-implement attempted to circumstances county, prohibiting further enforcement or implementation of the widespread practice of ap- or implementation of the widespread further enforcement prohibiting county, from district to at-large elections between 1947 and 1971, after blacks began to register and 1971, after blacks began to register district to at-large elections between 1947 from that 1951 and 1961 statewide electoral changes, both of which utilized vote dilution tactics, that 1951 and 1961 statewide electoral tion through such measures identification as voter welllaws as continued dilution.vote to county redistricting plans following the 1980 census. following the 1980 plans redistricting to county that the dearth of African-American poll workers was the product of intentional discrimination that the dearth of African-American poll workers was the product - successfully chal those tactics had been previously vote, even where the African-American tive evidence, expert testimony was presented “that a third of the state’s counties shifted of the state’s “that a third presented tive evidence, expert testimony was ties. were adopted by the Alabama legislature with a discriminatory intent. adopted by the Alabama legislature were discrimination, the federal district court enjoined the use of at-large elections in these coun discrimination, the federal district court U.S. House Judiciary Committee report concluded that “[t]he changes sought by covered sought by covered concluded that “[t]he changes Committee report U.S. House Judiciary voting system today. today. system voting voting rights, is an example of how litigation dismantled policies that intentionally discrimi voting rights, is an example of how litigation Section 2 of the VRA. The district court first granted preliminary relief against almost every relief against first granted preliminary Section 2 of the VRA. The district court Alabama, a state historically and continually at the center of the battle for racial equality in Alabama, a state historically and continually However, this has not been this has not However, 39

38 Percentage of Voting Age 2010 in Population Map 1: Black or African-American: African-American: or Black 1: Map population living in the South. One-hundred five Southern of counties had a black population population living in the South. One-hundred spectively, which represents a steady increase in turnout from previous years (compared with years (compared previous in turnout from a steady increase which represents spectively, the case in other types of elections. In the last two midterm elections, for example, African- the case in other types of elections. In the last two midterm elections, for the last two presidential elections that brought President Barack Obama into office, African- Barack Obama into office, President elections that brought the last two presidential - re 66 and 65 percent, at approximately turnout levels among citizens of voting age were 50 percent or higher. 50 percent 60, 57, and 53 percent in 2004, 2000, and 1996, respectively). 60, 57, and 53 percent South, as well as big cities in other parts of the country. The most recent census found that census found that The most recent of the country. South, as well as big cities in other parts Geography American participation rates continued to fall below that of whites. In 2010 and 2006, the American participation rates continued to fall below that of whites. In 2010 Participation As can be seen in the graphs in Appendix C, registration and turnout among African As can be seen in the graphs in Appendix C, registration In to the U.S. Census Bureau. years, according in recent Americans has been improving and 2008, African-American In 2012 and turnout rates increased. American voter registration As shown in Map 1, the African-American population is still heavily concentrated in the As shown in Map 1, the African-American 14 percent of all people in the United States identified as black, with 55 percent of the black as black, with 55 percent of all people in the United States identified 14 percent

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4

NATIONAL COMMISSION ON VOTING RIGHTS 74 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4 NATIONAL COMMISSION ON VOTING RIGHTS 75 esent epr Nonetheless, 42 Additionally, the Additionally, 46 As a result, in jurisdic- As a result, brought from January 1995 January 1995 from brought 41 44 e found to discriminate against

47 These cases continue to be largely con- 45

40

43 non-minority districts, the overwhelming number of minority legislators continue to r non-minority districts, the overwhelming negative differentials between African-American and white participation rates were 5 and 11 rates were white participation and between African-American differentials negative preclearance denials issued during this period, 101—or nearly 90 percent of the denials—in- denials issued during this period, 101—or nearly 90 percent preclearance plans, at-large elections, and other election practices that wer plans, at-large elections, and other election minority vote dilution, including through the districting process. including through minority vote dilution, majority-minority districts.” percentage points, respectively. percentage percent gain in those states that were formerly entirely covered by Section 5. covered formerly entirely gain in those states that were percent Department or federal court refused to preclear election changes, issued between January to preclear Department or federal court refused strated by the tables outlining the cases litigated under the Voting Rights Act since 1995 (see Rights Act litigated under the Voting strated by the tables outlining the cases Louisiana, and Georgia alone accounting for 42 percent of these cases. Louisiana, and Georgia alone accounting for 42 percent and these procedures continue to be used to disempower African Americans. As is demon- continue and these procedures overwhelming majority of Section 5 and Section 3(c) preclearance denials, where the Justice denials, where overwhelming majority of Section 5 and Section 3(c) preclearance getting elected in areas without a majority of minority voters continues to be a challenge for without a majority of minority voters continues to be a challenge getting elected in areas centrated in the Southern Americans United States. About 2/3 of the cases involving African jurisdictions, with Mississippi, in jurisdictions in the former Section 5-covered occurred candidates can regularly gain elected office. Between 1970 and 2000, the nation saw a office. Between 1970 and 2000, gain elected candidates can regularly there is evidence to suggest that minority candidates are beginning to win elections in some are is evidence to suggest that minority candidates there would not discriminate against African Americans. to June 2014 involved African-American voters. tions where the African-American population is sufficiently concentrated, African-American population is sufficiently concentrated, the African-American tions where 600 percent gain in the number of African-American elected officials nationally and a 1,000 gain in the number of African-American 600 percent volved circumstances where the submitting jurisdictions failed to prove the proposed change the proposed to prove the submitting jurisdictions failed where volved circumstances Supplemental Online Appendix), there have been numerous cases striking down redistricting cases striking down redistricting have been numerous Supplemental Online Appendix), there Several types of election procedures have been used to discriminate against African- have been used to discriminate Several types of election procedures Section 2 and Section 5 of the VRA were highly effective working in tandem to reduce to highly effective working in tandem 5 of the VRA were Section 2 and Section Current Types of Discrimination African-American candidates. As several voting rights experts recently concluded, “Although voting rights experts recently African-American candidates. As several American citizens, including vote dilution, barriers to voting, and even attempts at intimidation, American citizens, including vote dilution, African Americans. Over 1/3 of the successful Section 2 cases African Americans. Over 1/3 of the successful Elected Officials 1995 and June 2014 were for changes impacting African Americans. Of the 113 Section 5 1995 and June 2014 were e denied their full and and are the nation’s the nation’s and are 50 The cases and research discussed in depth in the following The cases and research 49 Additionally, as is discussed in Chapter 6, evidence indicates as is discussed Additionally, 48 As explained below, however, voter participation rates for Latinos— however, As explained below, 51

52 largest minority group. have sustained it.” recently employed to dilute African-American voting strength. Of the 62 successful Section 2 voting strength. employed to dilute African-American recently Dr. Brenda Williams of The Family Unit testified at the NCVR South Carolina state hearing, stating “[T]he testified at the NCVR South Carolina Williams of The Family Unit Brenda Dr. involved redistricting plans. involved redistricting Latinos comprise approximately 17 percent of the U.S. population 17 percent Latinos comprise approximately people have the authority to stop and not take your picture if you don’t fit their attire guidelines.” fit their attire if you don’t your picture people have the authority to stop and not take organization points out that “[m]ore than 100 years of virtually unchecked discrimination at organization points out that “[m]ore chapters will demonstrate the panoply of ways African Americans ar equal voting rights in the 21st century. cases involving African Americans, almost 1/2 involved at-large methods of election and 1/3 cases involving African Americans, almost the polls against Latino U.S. citizens gave birth to this situation, and a number of factors the polls against Latino U.S. citizens gave birth to this situation, and a number that increasingly stringent voter identification requirements, restrictions on voter registra- restrictions on voter requirements, stringent voter identification that increasingly African affect in early voting opportunities disproportionately tion drives, and reductions South Carolina Election Commission now has a dress code for people wanting and needing photo IDs in the code for Election Commission now has a dress South Carolina allowed, no scarves. African-American women No hats are have to wear a certain kind of attire. State. […] You despite recent increases—continue to lag behind those of other groups. A leading Latino groups. to lag behind those of other increases—continue despite recent II. LATINOS II. oftentimes adorn ourselves in scarves and turbans. It’s a part of our culture. […] [T]he voter registration office […] [T]he voter registration a part of our culture. oftentimes adorn and turbans. It’s ourselves in scarves Americans compared to whites. Americans compared At-large elections and discriminatory redistricting plans have been the primary tactics most plans have redistricting At-large elections and discriminatory

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4

NATIONAL COMMISSION ON VOTING RIGHTS 76 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4 NATIONAL COMMISSION ON VOTING RIGHTS 77 and ex- . 60 It is not an esent in 53 e recent his- e recent . esent day and The Supreme The Supreme groups and groups e pr 63 54 der expansion to Similarly, the United States Similarly, 55 oups with a mor segregation in schooling, segregation 59 and Puerto Ricans were granted U.S. citizenship and Puerto Ricans were 56 Hernandez challenged a Jim Crow practice in Texas that practice in Texas Hernandez challenged a Jim Crow 62 state-sanctioned violence, 58 in 1954, the first in which Texas In the watershed case of Hernandez v. 61 Despite these formal grants of citizenship, however, both Puerto Ricans and however, Despite these formal grants of citizenship, 57 has contributed to the existing disparities in electoral participation and opportunity has contributed to the existing disparities nation and exclusion in the United States, some of which continues to the pr nation and exclusion in the United States, in 1917, after which hundreds of thousands of Puerto Ricans migrated to the continental of thousands of Puerto Ricans migrated to the continental in 1917, after which hundreds ing unlawful deportations, include this territory in the 1840s. With the 1845 annexation of Texas and the 1848 Treaty of and the 1848 Treaty include this territory in the 1840s. With the 1845 annexation of Texas intimidation, racially targeted voter challenges, and English-only elections. Other persistent targeted voter challenges, and English-only intimidation, racially Mexican Americans and Puerto Ricans are the two largest Latino heritage the two largest are Mexican Americans and Puerto Ricans Mexican Americans throughout the Southwest have been the target of discrimination includ- Mexican Americans throughout Mexican Americans experienced acts of discrimination and obstacles to their full integration Mexican Americans experienced acts under the Fourteenth Amendment, separate class, stating: acquired control of Puerto Rico in 1898, of Puerto control acquired as equal citizens of the United States. Other Latino heritage gr as equal citizens of the United States. overgeneralization, however, to say that Latinos, as a whole, have faced a history of discrimi- overgeneralization, however, clusion from juries. clusion from forms of discrimination include discrimination in the redistricting process, the use of at-large process, include discrimination in the redistricting forms of discrimination - language assis to comply with the VRA’s the Latino vote, and the failure elections to dilute the Supreme Court recognized that Mexican Americans were entitled to equal protection entitled to equal protection that Mexican Americans were Court recognized the Supreme tory in the United States have similarly faced barriers to equality under the law tory in the United States have similarly the Mexican citizens living in that territory became U.S. citizens. the Mexican citizens living in that territory tance requirements to ensure equal access for Spanish-speaking voters, among others. equal access for Spanish-speaking to ensure tance requirements tion has come through formal and informal methods such as state-sanctioned violence and informal methods such as state-sanctioned formal and tion has come through those with the longest history in the United States. Mexican Americans wer those with the longest history in the what is now the Southwest of the United States even prior the U.S. bor what is now the Southwest of the United United States. denied Mexican Americans the opportunity to serve on trial or grand juries. Court recognized that Hernandez proved that persons of Mexican descent constituted a that Hernandez proved Court recognized Guadalupe Hidalgo, a great part of Northern became part of the United States, and Mexico Guadalupe Hidalgo, a great History and Background History - voting. This discrimina discrimination in historically faced Latinos have below, As detailed The history of Latinos in the United States, like the group itself, is quite diverse. like the group The history of Latinos in the United States,

74

71 just five 68 Some of these methods 75 This protection, however, was resisted by New was resisted however, This protection, 73

64 The provision was instrumental to the protection of Puerto was instrumental to the protection The provision 66 72 Texas further excluded Mexican Americans through its white prima- further excluded Mexican Americans through Texas 65 Later, in the 1920s, 1930s, and 1940s as Latino populations rose in the rose in the 1920s, 1930s, and 1940s as Latino populations Later, 69 New York, for example, instituted its English literacy test in 1922, for example, instituted its English literacy test New York, 67 Operation Eagle Eye, for example, deployed volunteers in Arizona to “question[] Operation Eagle Eye, for example, deployed 70 descent were required to attend a segregated school for the first four grades. to attend a segregated school descent were required Mexicans Served.’ On the courthouse grounds at the time of the hearing, there Mexicans Served.’time of the hearing, the courthouse grounds at the On ‘Colored Men’ and other marked and the one unmarked, toilets, were two men’s groups was shown to be slight. Until very recent times, children of Mexican children Until very recent times, groups was shown slight. to be At least one restaurant in town prominently displayed a sign announcing ‘No in townAt least one restaurant displayed a sign announcing prominently The participation of persons of Mexican descent in business and community and community in business of Mexican descent of persons The participation ‘Hombres Aqui’ (‘Men Here’). ‘Hombres ries, lauded for “eliminat[ing] the Mexican voter as a factor in nominating county candidates,” ries, lauded for “eliminat[ing] the Mexican rights in mind, the 1965 Act included an important provision for some Latinos: Section 4(e). for rights in mind, the 1965 Act included an important provision Rican voting rights in that it invalidated the English literacy tests that had been implemented Rican voting rights in that it invalidated the English literacy tests that had Eventually, Section 4(e) was to pave the way for more expansive provisions protecting lan- protecting expansive provisions Section 4(e) was to pave the way for more Eventually, Literacy tests were another tool used throughout the Southwest and in New York to block and in New York the Southwest another tool used throughout Literacy tests were and the imposition of a poll tax. agents to terrorize the Mexican American community through “lynchings, burning houses, the Mexican American community through agents to terrorize a language other than English. guage minority voters. of Puerto Ricans. executions in front of family members and murder,” also specifically discouraged Mexican also of family members and murder,” executions in front the polls. to block Puerto Ricans’ access to the polls. the Supreme Court rejected the challenge, holding that Section 4(e) was constitutional. the challenge, holding that Section Court rejected the Supreme the Latino vote. toral process. The Texas Rangers, for example, who utilized their position as law enforcement for example, who utilized their position as law enforcement Rangers, The Texas toral process. the sixth grade in an American public school where instruction was conducted primarily in instruction was the sixth grade in an American public school where would-be Latino voters about their residence and ability to read and understand English.” and ability to read would-be Latino voters about their residence witnesses testified that the discrimination methods used against African Americans in the witnesses testified that the discrimination methods used against African In the hearings leading up to the reauthorization of the Voting Rights Act in 1975 and 1982, of the Voting In the hearings leading up to the reauthorization years after Puerto Ricans were granted citizenship and New York City experienced an influx and New York granted citizenship years after Puerto Ricans were Southwest, Latino voters were the target of further intimidation efforts to keep them away from intimidation efforts to keep them away from the target of further Southwest, Latino voters were South were similarly being used against Latinos in the Southwest. South were Section 4(e) provides that the right to vote cannot be denied to U.S. citizens who completed Section 4(e) provides Early Discrimination in Voting Early Discrimination Continued Discrimination into the Second Half of the 20th Century Continued Discrimination into Americans from voting. Americans from Although, as mentioned, the VRA was originally designed with African Americans’ voting Although, as mentioned, the VRA was originally designed with African Americans’ Katzenbach v. Morgan, Court. In Katzenbach v. it all the way to the Supreme State, which challenged York This widespread discrimination against Mexican Americans also manifested itself in the elec- discrimination against Mexican Americans also manifested itself in the This widespread

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NATIONAL COMMISSION ON VOTING RIGHTS 78 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4 NATIONAL COMMISSION ON VOTING RIGHTS 79 egistration and egistration Importantly, Congress found Congress Importantly, 78 After finding that voting discrimi- After finding that 76

80 In invalidating the plan, the district court In invalidating the plan, the district court 79a In doing so, it sought to address a “racialized inequity a “racialized to address In doing so, it sought 77

79 PHOTO CREDIT: SAMUEL WASHINGTON PHOTO CREDIT: noted that in Bexar County, “cultural incompatibility… conjoined with the poll tax and the “cultural incompatibility… conjoined with noted that in Bexar County, nation against citizens with limited English proficiency was “pervasive and national in scope,” was “pervasive and national with limited English proficiency nation against citizens most restrictive voter registration procedures in the nation ha[d] operated to effectively deny in the nation ha[d] operated to effectively procedures voter registration most restrictive included “intimidation, capricious changes in voting rules, English-language r rules, English-language changes in voting “intimidation, capricious included Mexican-Americans access to the political processes in Texas even longer than the Blacks in Texas processes Mexican-Americans access to the political characteristics and not only on their language minority status.” not only on their language minority characteristics and for the Texas State House of Representatives. for the Texas cluding those with Spanish heritage. cluding those with that was purposefully directed at [Mexican-American voters] that turned at [Mexican-American racial/ethnic on their directed that was purposefully that English-only elections in jurisdictions where more than 5 percent of the voting age citi- than 5 percent more in jurisdictions where that English-only elections were formally denied access by the white primary.” were In recent decades, Latinos have also experienced discrimination in the redistricting process. process. discrimination in the redistricting decades, Latinos have also experienced In recent plans Court struck down a redistricting Regester, for example, the Supreme In White v. George Korbel, Attorney with the League of United Latin American Citizens, holding up two models of Texas Korbel, AttorneyAmerican Citizens, holding up two models of Texas with the League of United Latin George voting requirements, lengthy residential requirements, and the manipulation of the Mexican and the manipulation requirements, lengthy residential voting requirements, Congress in 1975 expanded the protections of the VRA to specific language minorities, in- VRA to specific language minorities, of the the protections in 1975 expanded Congress gerrymandered House districts while testifying about what he called “the vast arc of exclusion” in the State. House districts while testifying about what he called “the vast arc gerrymandered zens were a minority language group constituted a “test or device” under the Voting Rights constituted a “test or device” under the Voting a minority language group zens were Act, and hence were prohibited. Act, and hence were American vote by non-Mexican American political leaders.” American vote by . n history As a reflection of the increasing dispersal of the of the increasing As a reflection 83 To remedy this violation, the court ordered the district to this violation, the court ordered remedy To 81 resulting in the creation of a majority-Latino district that resulted in district that resulted of a majority-Latino in the creation resulting 82 Map 2: Hispanic or Latino: Percentage of Voting Age 2010 in Population redraw its district lines, redraw industrial cities. Arizona, California, Florida, Illinois, New Jersey, New Mexico, New York, and New Mexico, New York, industrial cities. Arizona, California, Florida, Illinois, New Jersey, Board of Supervisors had intentionally violated the rights of Latino citizens, in violation of violated the rights of Latino of Supervisors had intentionally Board Latino population, 23 states have at least one jurisdiction that meets the minimum population Latino population, 23 states have at least one jurisdiction that meets the geographically compact area of Latinos for several rounds of redistricting after a Latino candi- of redistricting for several rounds of Latinos area geographically compact the election of Gloria Molina, the first Latino Los Angeles county supervisor in moder Molina, the first Latino Los Angeles the election of Gloria thresholds and are hence covered under Section 203 of the VRA for the Spanish language, hence covered and are thresholds tance at polling places. which requires them to provide election materials in Spanish and Spanish-language assis- them to provide which requires date almost won election in 1958. date almost won election declared that, when drawing the district lines after the 1980 census, the Los Angeles County the district lines after the 1980 census, that, when drawing declared , a federal judge Angeles, a federal County of Los the case of Garza v. a 1990 decision in in Similarly, dividing a the Fourteenth Amendment, by intentionally Rights Act and Section 2 of the Voting Southwest, but the population has grown tremendously including in major cities and smaller tremendously Southwest, but the population has grown Geography As can be seen from Map 2, there continue to be significant concentrations of Latinos in the Map 2, there As can be seen from 79 percent in 2000 and 84 percent in 1990. in 2000 and 84 percent 79 percent Texas contain three-quarters (74 percent) of the nation’s Latino population. This is down from Latino population. This is down from nation’s of the (74 percent) contain three-quarters Texas

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- 92

The 91 87

oup … bear 96 esidential stabil- As the Supreme Court As the Supreme 94 and Mexican Americans and ess Latino participation. 90 Using data contained in the U.S. Using data contained ocess.” 86 Education, age, and income are Education, age, and income are 89 Between 1982 and 2005, in 13 reported Between 1982 and 2005, in 13 reported 95 Among citizens, the Hispanic voter turnout Among citizens, the rate in the 2012 84 The socioeconomic differences between Latinos and other groups help to explain between Latinos and other groups differences The socioeconomic 85 One of these factors is “the extent to which members of the minority gr One of these factors is “the extent to 93 The researchers found that “virtually all of the overall Latino group differences disappear differences group found that “virtually all of the overall Latino The researchers 88 hinder their ability to participate effectively in the political pr hinder their ability to participate effectively minority group members suffer effects of prior discrimination such as inferior education, poor members suffer effects of prior discrimination such as inferior education, minority group presidential election was 48.0 percent, while the turnout while the 64.1 rate for white voters was percent, election was 48.0 presidential percent. ity. successful Section 2 cases involving Latinos, courts found that discrimination in these other successful Section 2 cases involving Large turnout populations, including Mexican exist between white and Latino disparities Puerto Ricans are at a disadvantage compared with Anglos on each of those indicators. with Anglos on each at a disadvantage compared Puerto Ricans are areas did inhibit Latinos’ ability to effectively participate in the political process. did areas of socioeconomic variables including age, education, family income, and r of socioeconomic variables including employment opportunities, and low incomes.” , “political participation...tends to be depressed where where depressed Gingles, “political participation...tends to be explained in Thornburg v. groups analyzed the factors impacting voter participation. analyzed the factors groups exists. the effects of discrimination in such areas as education, employment and health, which as education, areas the effects of discrimination in such this disparity. A study seeking to understand why turnout A study seeking to understand differs between Latinos and other this disparity. combine with this history of prior discrimination to further suppr the demographic factors most strongly related to voter turnout related the demographic factors most strongly when socioeconomic variables are taken into account.” when socioeconomic variables are tory redistricting, attempts to dilute the Latino vote, and the denial of language assistance— tory redistricting, Census Bureau’s Current Population Survey, the researchers ran two statistical models. ran two statistical the researchers Population Survey, Current Census Bureau’s Courts have repeatedly noted the relationship between discrimination and social inequality. between discrimination noted the relationship Courts have repeatedly first used only racial-ethnic and national-origin factors, while the second tested the impact first used only racial-ethnic and national-origin 2 of the VRA identified several factors for courts to use when assessing whether a violation 2 of the VRA identified several factors Participation Americans and Puerto Ricans. Americans and Puerto A U.S. Senate Judiciary Committee report accompanying the 1982 amendments to Section accompanying A U.S. Senate Judiciary Committee report The ongoing discriminatory efforts discussed below—including voter intimidation, discrimina The ongoing discriminatory efforts discussed below—including voter intimidation,

but also in places where the com- but also in places where 100 By 2009, that number had increased to 277, and to had increased By 2009, that number Historical—and ongoing—types of discrimination 97 101

99 Though this trajectory is impressive, its significance should not its is impressive, Though this trajectory 98 which was decided in 1996 by the Tenth Circuit, was a classic Circuit, which was decided in 1996 by the Tenth 103 Out of these cases affecting Latino voters, 82 involved a successful challenge to the Out of these cases affecting Latino voters, 82 involved a successful challenge 102 but, like the increase in the number of African American representatives elected African like the increase in the number of but, elected from districts with non-Latino number of the Latino representatives blacks and Latinos together formed a majorities won in districts where Latino victories in districts characterized by majority—although the share of American African lowerblack-and-Hispanic majorities is than the share of non-Hispanic majorities represented by Latino legislators has risen since 1992, non-Hispanic majorities represented minority districts that have been created [for them] than they were in 1992 minority districts that have been are elected from majority-minority districts. The percentage of districts with districts. are elected from majority-minority Hispanic voters are now in the majority- more likely to elect Latino candidates from majority-nonblack districts, this increase has been small. Moreover, a Moreover, this increase has been small. from majority-nonblack districts, victories in such districts. African American representatives, the vast majority of Latino representatives American representatives, African (at least with regard to state senate and congressional districts) … [but] like (at least with regard to state senate be exaggerated. A separate statistical analysis shows that it continues to be difficult for a separate statistical analysis shows that be exaggerated. A munity has just recently started to grow. munity has just recently it climbed to 320 by 2013. it climbed to 320 by include voter intimidation, discriminatory redistricting, the use of at-large elections to dilute include voter intimidation, discriminatory redistricting, ing their right to vote. Latino candidate to get elected in a jurisdiction without a Latino majority: get elected in a jurisdiction without Latino candidate to Between January 1995 and June 2014, 29 of the denials of preclearance under Section 5 of Between January 1995 and June 2014, 29 of the denials of preclearance use of at-large methods of election and seven successfully challenged a redistricting plan. redistricting use of at-large methods of election and seven successfully challenged a case of Latino vote dilution. The Latino plaintiffs in the case challenged a state legislative case of Latino vote dilution. The Latino plaintiffs in the case challenged elected office at the state or federal level. elected office at - significant challenges in exercis that present other modern-day voting restrictions countered the National Association of Latino Elected Officials shows that in 1996, 180 Latinos held of Latino Elected Officials shows the National Association the Latino vote, and the denial of language assistance. Additionally, Latino voters have en- Latino the Latino vote, and the denial of language assistance. Additionally, over half of the successful cases the VRA have concerned Latino voting rights. Additionally, where they have historically had a strong presence, have historically had a strong they where Sanchez v. Colorado, Sanchez v. filed during this time period under Section 2 of the VRA have involved Latino voters (96 out of filed during this time period under Section 2 of the VRA have involved Latino Voting barriers for Latino voters have continued to the present day, not only in jurisdictions day, the present barriers for Latino voters have continued to Voting Types of Discrimination Elected Officials Elected The last 15-20 years have seen some improvement in Latino electoral opportunity. Data from Data from in Latino electoral opportunity. have seen some improvement The last 15-20 years 171).

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NATIONAL COMMISSION ON VOTING RIGHTS 82 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4 NATIONAL COMMISSION ON VOTING RIGHTS 83 a 109

108

110 Nonetheless, the commission’s ap- commission’s Nonetheless, the 104 The court ultimately held that the configuration The court ultimately held that the configuration 107 Importantly, since the District 60 house seat was drawn since the District Importantly, 106 Other factors also painted a picture of the hostility faced by the of painted a picture Other factors also 105 however, were not required to attend such a hearing. In 2006, the federal court entered a to attend such a hearing. In 2006, the federal court entered not required were however, heavily Hispanic in the San Luis Valley than elsewhere in the state because of the degree of state because of the degree in the than elsewhere the San Luis Valley heavily Hispanic in portionment of District 60 resulted in a district where Latinos comprised only 42.4 percent of comprised only 42.4 percent Latinos district where in a 60 resulted portionment of District racially polarized voting found in this area of the state.” found in this area racially polarized voting redistricting plan that did not provide for a majority Latino district (House District 60) in the district (House District a majority Latino for did not provide plan that redistricting include a Latino-majority district centered in the San Luis Valley. in the San Luis include a Latino-majority district centered United States v. Long County, Georgia, Long County, example is United States v. individuals’ voting rights. A recent in 1940, it had only been held by Anglos. ship. Other non-Latino residents whose right to vote had been challenged on other grounds, been challenged on other grounds, whose right to vote had ship. Other non-Latino residents Latino community in the area. For example, the Anglo incumbent for the District 60 House the Anglo incumbent for the District For example, in the area. Latino community problems such and plaintiffs testified about to Latinos as “wetbacks,” seat had referred and (3) properly train their election officials and poll workers. and (3) properly as: the placing of voter registration branches “in Anglo homes, where Hispanics would feel Hispanics branches “in Anglo homes, where as: the placing of voter registration of all Anglo election judges,” and missing Latino uncomfortable entering… the appointment of District 60 diluted the Latino vote and remanded the case back to the district court, with the case and remanded of District 60 diluted the Latino vote consent decree requiring the County to (1) notify the 45 Latino voters that the challenges to the County to (1) notify the 45 Latino requiring consent decree experienced a dramatic increase (460 percent) in its Latino population between 1990 and in its Latino population (460 percent) experienced a dramatic increase the voting age population. their right to vote were unsubstantiated, (2) implement uniform voter challenge procedures, unsubstantiated, (2) implement uniform voter challenge procedures, their right to vote were they were not U.S. citizens. Even though none of these challenges were actually supported, actually of these challenges were not U.S. citizens. Even though none they were their U.S. citizen- to attend a hearing and prove Latino residents all 45 the County required that there was racially polarized voting and it was “necessary to create districts that are more more districts that are and it was “necessary to create was racially polarized voting that there directions that the court order the State of Colorado to implement a remedial plan that would plan that a remedial the State of Colorado to implement that the court order directions voters from the registration rolls. registration the voters from San Luis Valley. A consulting firm hired by the Colorado Reapportionment Commission found by the Colorado Reapportionment firm hired A consulting San Luis Valley. 2006 lawsuit filed against the County for unlawfully targeting Latino voters. Long County had 2006 lawsuit filed against the County population. In the of the County’s up 8.4 percent 2000, and in 2000, the community made that challenged on the grounds was Latino residents 2004 election, the right to vote of 45 Additional Section 2 cases have included claims such as discriminatory challenges to Additional Section 2 cases have included - , the

112 Whether these new eligible voters become 113 However, “after county attorney Russ Gillis began the hearing, it didn’t take him “after county attorney it didn’t Russ Gillis began the hearing, However, 111 long to get to his point. The challenges were dismissed because they were ‘legally insufficient they were dismissed because were long to get to his point. The challenges be eligible to vote, up from 23.7 milion now.” be eligible to vote, up from had their right to vote challenged on the basis of their citizenship. Like in Long County had their right to vote challenged on percent) were brought on behalf of Spanish-speaking voters. As discussed above, English- brought were percent) for language assistance, Spanish-speaking voters continue to be denied full, requirements detail in Chapter 7, the meaningful, and equal access to the polls. As discussed in more of language assistance at the polls has been shown to positively impact voter par provision rights. because they’re based solely on race,’ he said to the courtroom.” because they’re PRLDEF, (far right) said “[W]e consistently treat citizens in this country as if they have to earn and re-earn their (far right) said “[W]e consistently treat PRLDEF, actual voters will depend, in large part, on the legal protections in place to ensure that ac- in place to ensure actual voters will depend, in large part, on the legal protections a persistent problem for Latino voters. Out of the 58 successful language assistance cases for Latino voters. Out of the 58 successful language assistance cases a persistent problem January 1995 and June 2014, 46 of them (79 settlements filed between and pre-litigation the United States fail to adequately comply with federal as some jurisdictions throughout elgibile electorate in the U.S. between now and 2030, at which time 40 million Hispanics will elgibile electorate in the U.S. between now and 2030, at which time 40 million cess to all aspects of voting is free of disrimination and unecessary barriers. As the Latino cess to all aspects of voting is free imperative than ever that access to the ballot is not it is more electorate continues to grow, by racial discrimination. encumbered only elections were historically utilized to keep Spanish-speaking voters form the polls. Today, historically utilized to keep Spanish-speaking voters form the polls. Today, only elections were ticipation in Latino communities. challenged voters were forced to appear at the county courthouse to defend their voting forced challenged voters were right to vote. We don’t treat it as a right. […] [That] explains why so many of us who are eligible to vote and have are it as a right. […] [That] explains why so many of us who treat don’t right to vote. We the again. […] It is time that we treat eligible to vote again, and that we are have to re-approve to vote registered PHOTO CREDIT: CHRIS FIELDS PHOTO CREDIT: vote as a right in a democracy.” Georgia. In 2004, 95 Latino registered voters—78 percent of all Latino voters in the county— of all Latino voters voters—78 percent Georgia. In 2004, 95 Latino registered At the NCVR regional hearing in New York City, Juan Cartagena, President & General Counsel of Latino Justice & Juan Cartagena, President City, hearing in New York At the NCVR regional According to the Pew Hispanic Center, Latinos “will account for 40% of the growth in the “will account for 40% of the growth Latinos to the Pew Hispanic Center, According Another example of targeted challenges against Latinos took place in Atkinson County, against Latinos took place in Atkinson County, Another example of targeted challenges Jurisdictions’ failure to provide the necessary and often required language assistance is also the necessary and often required to provide Jurisdictions’ failure

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NATIONAL COMMISSION ON VOTING RIGHTS 84 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4 NATIONAL COMMISSION ON VOTING RIGHTS 85 - The 120 The in- 118 Sacred Native- Sacred Throughout the Throughout 119 117 e white settlers arrived, e white settlers arrived, ocess was often so demand

116 But when such litigation has But when such litigation 114 And those Native Americans who were And those Native Americans who were

122 123 While some treaties provided that Native Americans provided While some treaties 121

115 denied the opportunity to control their owndenied the opportunity to control destiny. minority group in our nation. On virtually every of measurement— scale minority group in our nation. centuries of injustice. This condition is the heritage of ranks at the bottom. deprived of their ancestral lands and have been oppressed and brutalized, employment, income, education, health—the condition of the Indian people health—the condition of the Indian education, income, employment, From the time of their first contact with European settlers, the American Indians American the settlers, the time of their first contact with European From The First Americans—the Indians—are the most deprived and most isolated Americans—the Indians—are the The First laws passed by Congress to control their affairs. to control laws passed by Congress not citizens had no federally protected right to vote and thus had no power to influence the not citizens had no federally protected been brought, “courts have invariably found patterns of widespread discrimination against discrimination against invariably found patterns “courts have of widespread been brought, brought on behalf of Native Americans until fairly recently. on behalf of Native brought ing that few Native Americans could undertake it. Native Americans have only relatively recently been given the right to vote under the laws of given the right to vote under the been recently have only relatively Native Americans Discrimination against Native Americans in voting can be traced back to at least 150 years Discrimination against Native Americans adoption of a land allotment system proved another “efficient device for separating Indians adoption of a land allotment system proved ago—to a time when Native Americans were deemed not to be citizens of the United States deemed not were ago—to a time when Native Americans and the policy of the federal government was the “eventual assimilation of the Indian popula- could become citizens of the United States, the naturalization pr from their land and pauperizing them.” their from tentional extermination of the buffalo that Native Americans needed to survive—an estimated tentional extermination of the buffalo that Native Americans needed to survive—an tion” and the “gradual extinction of Indian reservations and Indian tribes.” reservations tion” and the “gradual extinction of Indian the United States and still struggle to achieve full participation in the political process. While in the political process. still struggle to achieve full participation the United States and little voting rights litigation was Americans, relatively Rights Act applies to Native the Voting they were to end their nomadic way of life and, as President Andrew Jackson put it, “cast off Jackson put Andrew to end their nomadic way of life and, as President they were civilized, and Christian community.” their savage habits and become an interesting, were forbidden to speak their native languages or practice Native-American traditions. forbidden were Indians in the political process.” Indians in the political dency upon the United States and kept them confined to the reservations. dency upon the United States and kept them confined to the III. NATIVE AMERICANS III. NATIVE young Native Americans by sending them to federally supervised schools in which students young Native Americans by sending them to federally supervised schools History and Background History As President Richard Nixon said in 1970, Nixon Richard As President Although they inhabited what is now the United States long befor what is now the United States Although they inhabited American rituals and practices were outlawed, and the government attempted to “detribalize” American rituals and practices were 15 million buffalo were killed between 1872 and 1883—forced Native Americans into depen- killed between 1872 and 1883—forced 15 million buffalo were 1800s, Native-American tribes were forcibly removed from their lands to reservations, where where their lands to reservations, from removed forcibly 1800s, Native-American tribes were - For example: 124 ement as a qualifica equir

125

130

128

126

129 127 law, they were considered non-residents. The Utah Supreme Court upheld this law, and upheld this law, Court Supreme The Utah non-residents. considered they were law, it in 1957. repeal lature right to vote. ans not taxed” from voting, even though they allowed whites who did not pay taxes the voting, even though they allowed whites who did not pay taxes the ans not taxed” from only after the United States Supreme Court agreed to review the case did the state legis- to review Court agreed only after the United States Supreme tion for voting; the requirement was not repealed until 1970. was not repealed requirement tion for voting; the territorial elections be able to read and write the English language.” When Alaska’s consti- write the English language.” When Alaska’s and be able to read territorial elections literacy r in 1959, it included an English tution became operative were “under guardianship” of the federal government. This policy remained in place until in of the federal government. This policy remained “under guardianship” were In Colorado, Native Americans residing on reservations were not permitted to vote until were on reservations In Colorado, Native Americans residing In 1925, the Alaska Territorial Legislature enacted a literacy law that required “voters in “voters in law that required enacted a literacy Legislature Territorial In 1925, the Alaska “Indi- prohibited and Washington Maine, Mississippi, New Mexico, Into the 1940s Idaho, Utah denied Native Americans living on reservations the right to vote because, under state the right on reservations Utah denied Native Americans living Arizona denied Native Americans living on reservations the right to vote because they the on reservations Arizona denied Native Americans living 1970. 1948.

language minorities, including Native Americans, in 1975. language minorities, including Native Native Americans in 1924, yet a systemic denial of the right to vote continued. 1924, yet a systemic denial of the Native Americans in Congress extended citizenship—including the federally protected equal right to vote—to all equal right to vote—to protected the federally citizenship—including extended Congress These abuses were a major impetus for Congress’s extension of the Voting Rights Act to extension of the Voting a major impetus for Congress’s These abuses were • • • • •

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NATIONAL COMMISSION ON VOTING RIGHTS 86 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4 NATIONAL COMMISSION ON VOTING RIGHTS 87 - cent

132 Similarly, in the 2012 election, 46.6 in the 2012 Similarly, 133 Percentage of Voting Age Population in 2010 One Race including Cherokee, Chippewa, Navajo, and Sioux Map 3: American Indian and Alaska Native: Native: Alaska and Indian American 3: Map They are a small share of the population, but in certain counties they make a small share They are 131 have consistently found participation differentials, and census data from the 2008 and 2012 data from and census have consistently found participation differentials, presidential elections show a differential on a national basis. In the 2008 election, 47.5 per elections show a differential presidential it publishes regarding voting by whites and other groups, analyses show Native-American analyses show Native-American voting by whites and other groups, it publishes regarding in states such as Alaska, Arizona, Montana, New Mexico, North Dakota, Oklahoma, and in states such as Alaska, Arizona, Montana, up a significant portion—if not a majority—of the population. In a handful of states Native up a significant portion—if not a majority—of the population. In a handful cent of American Indian and Alaska Native citizens of voting age voted, while 66.1 per cent of American Indian and Alaska Native citizens of voting age voted, while of non-Hispanic white citizens of voting age voted. for example in recent races for U.S. Senate in Alaska and Montana. for example in recent voting rates are among the lowest of all racial and ethnic groups in the United States. Courts among the lowest of all racial and ethnic groups voting rates are South Dakota. Geography Participation Americans have sufficient numbers and potential voting power to affect election outcomes, Americans have sufficient numbers and potential voting power to affect Although the U.S. Census does not publish as much data on voting by Native Americans as Although the U.S. Census does not publish as much data on voting by Native As can be seen in Map 3, the American Indian and Alaska Native population is concentrated As can be seen in Map 3, the American

-

137 135 e essed es: ther ely depr s language as- ’ Between January 1995 Harassment, intimida- egister and vote, despite

e only about politics on 141a 138 . 134 141 Disparities in socioeconomic sta- Disparities in socioeconomic 136 A recent case from Alaska is illustrative. Prior to the case from A recent 142

139 In 2012 there were no Native-American members of the U.S. Senate and two no were In 2012 there 140 language assistance at polling places to thousands of Yup’ik-speaking voters in the Bethel language assistance at polling places to thousands of Yup’ik-speaking plaintiffs under Section 2 of the VRA (not including language assistance cases). Over half of plaintiffs under Section 2 of the VRA (not including language assistance plans. - voting, com of voting age reported Native citizens Indian and Alaska of American percent citizens of voting age. of non-Hispanic white to 64. percent pared ballots in Yup’ik, pre-election publicity in Yup’ik, and a Yup’ik glossary of election terms and a Yup’ik publicity in Yup’ik, pre-election ballots in Yup’ik, ing the state to provide language assistance to Yup’ik voters, including translators, sample language assistance to Yup’ik ing the state to provide Native-American communities still, de facto, lack the right to vote. Native-American communities still, de Native Americans or on behalf of Native Americans by DOJ under the VRA Native-American members of the U.S. House of Representatives. Native-American members of the U.S. socioeconomic status—in every socioeconomic factor reported in the census, Native in the census, reported every socioeconomic factor socioeconomic status—in sistance provisions concerning bilingual election assistance; the languages involved were concerning bilingual election assistance; the languages involved were sistance provisions Lakota, Navajo, and Yup’ik. Keresan, acknowledged that low political participation is one of the effects of past discrimination. low political participation is one of acknowledged that and methods of election that dilute Native-American voting power and June 2014 there were 18 successful cases brought by or on behalf of Native-American 18 successful cases brought were and June 2014 there are currently 75 American Indian, Alaska Native, and Native Hawaiian state legislators in 75 American Indian, Alaska Native, and Native currently are tus are causally connected to Native Americans’ depressed level of political participation. to Native Americans’ depressed causally connected tus are tion, and misinformation further thwart Native Americans’ efforts to r tion, and misinformation further thwart of the VRA. the protections the reservation, and the lack of VRA enforcement” to create an environment in which many an environment to create and the lack of VRA enforcement” the reservation, those cases involved at-large methods of election; three of the cases involved redistricting cases involved redistricting of the those cases involved at-large methods of election; three to get elected to high office. They have been most successful in state legislatur to get elected to high office. They One of the legacies of the discrimination faced by Native Americans is a sever of the discrimination faced by Native One of the legacies Since 1973, there have been more than 30 successful challenges to redistricting schemes than 30 successful challenges to redistricting have been more Since 1973, there Courts charged with addressing voting discrimination against Native Americans have discrimination against Native Americans voting addressing Courts charged with granted the plaintiffs a preliminary injunction requir injunction Bethel granted the plaintiffs a preliminary The court in Nick v. Census Area. 2008 election, plaintiffs sued Alaska for failure to provide translated election materials and to provide 2008 election, plaintiffs sued Alaska for failure Types of Discrimination Americans today lag far behind their white counterparts. Americans today lag Also between January 1995 and June 2014, there were five successful cases brought by five successful cases brought were Also between January 1995 and June 2014, there Elected Officials These disparities combine with “the pervasive myth that Indians car These disparities combine with “the Though the numbers are slowly increasing, it has proven very difficult for Native Americans it has proven slowly increasing, Though the numbers are 17 states.

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145 emains subject to the emains subject to ea r

In 2010, the parties entered into a settlement into a settlement the parties entered In 2010,

143

144 Purging Native Americans from voter registration lists; voter registration Purging Native Americans from American Indians and Alaska Natives; and Baseless charges of voter fraud against polling places in Native-American communities. sufficient to provide Failure Refusal by election registrars to provide registration forms to groups involved in registering in registering involved to groups forms registration to provide registrars Refusal by election American Indians and Alaska Natives;

locations are typically located in different language provisions of the VRA. of the language provisions not own reliable vehicles, or do not have the not own reliable vehicles, communities. So for many tribal members, So for many tribal members, communities. candidate. (NCVR Rapid City Hearing) candidate. and federal elections means travelling to is more than 40 miles from the county seat is more than 40 miles from the county .] do . .] Many voters [. . [. Lake. Timber in requiring the state to provide bilingual election materials, outreach workers, and notices of outreach bilingual election materials, the state to provide requiring two different communities to vote. ” two different communities to vote. istering and voting. Incidents have included: istering and voting. with state and federal elections, polling with state and federal elections, Dewey County] lives in Eagle Butte, which Dewey County] lives in Eagle Butte, PHOTO CREDIT: JOHNNY SUNDBY PHOTO CREDIT: voting in both tribal elections [. . .], state, state, .], . voting in both tribal elections [. vote. Although tribal elections are synched Although tribal elections vote. for the 2008 primary and general election. primary and general for the 2008 election in all subsequent elections as long as the Bethel Census Ar elections as long as the Bethel election in all subsequent financial resources to make a trip to early

Tribe, former South Dakota State Senate Tribe, - with Native Americans reg cases involving blatant interference also have been several There • • • • –Julie Garreau, of the Cheyenne River Sioux –Julie Garreau, “Over 60 percent of [the population of “Over 60 percent of [the population

- - 148 n . e still de otection oss the country ed the affairs of the “Organized” coun- cent of the state’s cent of the state’s 146 The “unorganized” coun- 147

153

150 The justification offered for this restric- for this The justification offered 151 The United States Court of Appeals for the Eighth Circuit The United States Court of Appeals for the Eighth Circuit 152 The residents of the “unorganized” counties—Todd, Shannon, and of the “unorganized” counties—Todd, The residents 149 lowed to run for the offices in question in Fall River County. ment, or redistricting after a Native-American candidate won a primary, or diluting the Native or diluting the Native candidate won a primary, after a Native-American ment, or redistricting nied the right to run for those offices. The United States challenged the denial of the right of nied the right to run for those offices. The United States challenged the however, could not vote for the county officials in the county to which theirs was attached. could not vote for the county officials in the county however, residents of Shannon County to run for the county offices of Fall River County that governed residents prohibition on residents of “unorganized” Counties voting for county government officials on residents prohibition including Native Americans, South Dakota persistently engaged in discriminatory conduct— South Dakota persistently including Native Americans, simply denying counties with large Native-American populations the ability to form a gover simply denying counties with large Native-American using a broad range of tactics—that limited the voting rights of Native Americans. Whether limited the voting rights of Native range of tactics—that using a broad Even after the residents of Todd, Shannon, and Washabaugh counties were granted the right counties were Shannon, and Washabaugh of Todd, Even after the residents Reservation and hence have little, if any, interest in the county government of either Shannon interest Reservation and hence have little, if any, of their duties.” sible exercise faced in voting. Even after the VRA was expanded in 1975 to incorporate language minorities, to incorporate language minorities, after the VRA was expanded in 1975 faced in voting. Even the various forms of voting discrimination faced by Native Americans acr the various forms of voting discrimination South Dakota found this justification insufficient and held that the practice violated the Equal Pr found this justification insufficient and held that the practice violated the or Fall River County,” and “a personal stake in the government insufficient to insure respon- and “a personal stake in the government insufficient to insure or Fall River County,” county (i.e., county commissioners, judges, auditor, sheriff, etc.). auditor, county (i.e., county commissioners, judges, for purposes of government and administration. The residents of unorganized counties, for purposes of government and administration. The residents total population and had two counties that were covered jurisdictions under Section 5 of the jurisdictions under Section 5 of the covered had two counties that were total population and to vote for the elected officials who conducted the affairs of their counties, they wer to vote for the elected officials who conducted the affairs of their counties, tion was that “the great majority of Shannon County voters reside on the Pine Ridge Indian majority of Shannon County voters reside tion was that “the great ties all had a full complement of elected county officials who administer ties all had a full complement of elected ties did not elect their own county officials but, rather, were attached to an adjoining county were but, rather, ties did not elect their own county officials who governed them. found that the State’s Dakota South found that the State’s Little Thunder v. In 1975, a federal court of appeals in Washabaugh—were overwhelmingly Native American. Washabaugh—were vote through malapportionment or packing, the actions of officials in South Dakota exemplify malapportionment or packing, the vote through violated the Equal Protection Clause of the Fourteenth Amendment. violated the Equal Protection South Dakota, which has a Native-American population that is 8.9 per has a Native-American population South Dakota, which United States v. South Dakota. Shannon County in United States v. Clause of the Fourteenth Amendment and required that residents of Shannon County be al- that residents Clause of the Fourteenth Amendment and required Case StudyCase VRA, provides examples of many of the types of discrimination that Native Americans have many of the types of discrimination examples of VRA, provides VOTE DENIAL BASED ON RESIDENCE IN AN “UNORGANIZED” COUNTY VOTE DENIAL BASED ON RESIDENCE Those residents, therefore, were not able to vote for most of the elected county officials not able to vote for most of the elected county officials were therefore, Those residents,

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AP of 164 ound eed to a new The South The South e explicitly drawn 163 cent of the V cent of the land ar The County intentionally The County intentionally 155 The U.S. District Court for the District The U.S. District Court for the District Thus, “all of the voters in the district Thus, “all of the voters 162 156

161 158 Native Americans comprised 60 percent of the voting Native Americans comprised 60 percent Thus, any voting changes affecting those counties—includ- 159 167 In 1993, officials in Day County created a sanitary district near in Day County In 1993, officials

154 166 After a Native American won a Democratic primary in District 28A, the legis- After a Native American won a Democratic The case settled, and both the County and the district admitted that the and both the County and the district The case settled, 160 157 The 1991 plan was reinstated, and Tom Van Norman became the first Native Norman became the first Native Van and Tom The 1991 plan was reinstated, 165 lature adopted a mid-census plan that replaced District 28A and District 28B with a single District 28A and District adopted a mid-census plan that replaced lature held that the state legislature had “acted beyond its constitutional limits.” held that the state legislature majority-white multi-member house district. boundaries unlawfully denied Native-American citizens the right to vote and agr boundaries unlawfully denied Native-American plan that included the Native-owned land. plan that included the Native-owned ing statewide changes—should have been submitted to the DOJ or the U.S. District Court for ing statewide changes—should have been submitted to the DOJ or the U.S. Members of the Cheyenne River Sioux Tribe sought relief under both the South Dakota the South Dakota under both sought relief Tribe Members of the Cheyenne River Sioux senate member and two house members elected on an at-large basis, with the exception of senate member and two house members Dakota Constitution mandated apportionment in 1991 and every 10 years thereafter, District 28B. Enemy Swim Lake, but the district boundaries included only 13 per but the district boundaries included Enemy Swim Lake, Dakota state legislature. age population (VAP) of District 28A, which included the Cheyenne River Sioux Reservation age population (VAP) Reservation, but less than 4 per and portions of the Standing Rock Sioux and a 1995 memorandum by the South Dakota Legislative Research Council confirmed Council confirmed and a 1995 memorandum by the South Dakota Legislative Research kota Supreme Court, which Court, which of South Dakota certified the state law question to the South Dakota Supreme excluded the remaining land around the lake, which was owned by the Sisseton-Wahpeton was owned by the Sisseton-Wahpeton the lake, which land around excluded the remaining two single-member house districts—District 28A and District 28B—that wer two single-member house districts—District minority voting rights. to protect that, in the absence of a successful legal challenge, no redistricting could take place before could take place before that, in the absence of a successful legal challenge, no redistricting the lake, all of which was owned by non-Native Americans. the lake, all of which ture’s attempt to abolish a majority Native-American single-member state house district. A attempt to abolish a majority Native-American single-member ture’s were white.” were Indian Reservations respectively, were covered by Section 5 of the VRA as a result of the 5 of the VRA as a result by Section covered were Indian Reservations respectively, , voters in South Dakota successfully challenged the state legisla- Hunt, voters in South Dakota successfully In 2000, in Emery v. In 1999, the United States sued Day County, South Dakota, for denying Indians the right to Dakota, for denying Indians the right South States sued Day County, In 1999, the United DISTRICT BOUNDARIES DRAWN TO INCLUDE ONLY LAND OWNED BY NON- ONLY LAND OWNED TO INCLUDE BOUNDARIES DRAWN DISTRICT NATIVE AMERICANS REFUSAL TO COMPLY WITH PRECLEARANCE REQUIREMENT OF SECTION 5 OF THE VRA REFUSAL TO COMPLY WITH PRECLEARANCE REQUIREMENT OF SECTION MID-DECADE REDISTRICTING TO ELIMINATE A MAJORITY-MINORITY DISTRICT MID-DECADE REDISTRICTING TO ELIMINATE vote in a sanitary district. Sioux Tribe and about 200 of the tribe’s members. and about 200 of the tribe’s Sioux Tribe Shannon County and Todd County, South Dakota, home to the Pine Ridge and Rosebud County, Shannon County and Todd Constitution and Section 2 of the Voting Rights Act. Constitution and Section 2 of the Voting 2001. American from the Cheyenne River Sioux Indian Reservation to be elected to the South the Cheyenne River Sioux Indian Reservation to be elected to the South American from 1975 amendments to the Act. 1991 apportionment provided that each of the State’s 35 districts would be entitled to one that each of the State’s 1991 apportionment provided - - -

176

178 Some of the changes that were enact- that were Some of the changes 169 The State was immediately enjoined from from The State was immediately enjoined From 1976 to 2002, South Dakota enacted over South Dakota 1976 to 2002, From 172 168 The court entered a consent order in December 2002 in a consent order The court entered 171

170

The State made its first submission under the consent order in April 2003; it in April under the consent order The State made its first submission 174 173 As discussed above, South Dakota’s legislative plan has 35 districts, with each dis- As discussed above, South Dakota’s When the district court found that the State’s plan violated Section 2, it ordered the plan violated Section 2, it ordered When the district court found that the State’s 175 177 prevent single-shot voting, and a majority-vote requirement for primary races for the U.S. for and a majority-vote requirement single-shot voting, prevent ber districts (28A and 28B). In the plan at issue, there were only two Native American-majority Native two only were there issue, at plan the In 28B). and (28A districts ber majority-vote requirement, and required to develop a plan to submit all un-precleared voting to develop a plan to submit all un-precleared and required majority-vote requirement, it was required to preclear under Section 5. under to preclear it was required ing changes. that South Dakota’s 2001 legislative redistricting plan violated legislative redistricting 2001 that South Dakota’s Hazeltine in Bone Shirt v. ing Native Americans the opportunity to elect a candidate of their choice in two separate dis ing Native Americans the opportunity to elect a candidate of their choice ing age population in District 27 and over 74 percent of the voting age population in District ing age population in District 27 and over 74 percent implementing the statutes discussed above regarding a numbered seat requirement and seat requirement a numbered above regarding implementing the statutes discussed District 26 was adjacent to District 27 and had only a 30 percent Native-American population. District 26 was adjacent to District 27 and had only a 30 percent of the vot- and Native Americans would comprise over 65 percent House of Representatives, about these tactics). ed without being submitted for preclearance that had the potential to dilute Native-American that had the potential to dilute for preclearance ed without being submitted counties filed suit against South Dakota seeking to force it to submit the more-than 600 it to submit the more-than seeking to force counties filed suit against South Dakota the plaintiffs’ remedial plan, and the appeals court affirmed. the plaintiffs’ of the state Senate. The exception was District 28, which was divided into two single-mem of the state Senate. The exception was District 28, which was divided into changes in order to “promptly bring the State into full compliance with its obligations under to “promptly changes in order took approximately three years to complete the process of submitting the un-precleared vot- un-precleared of submitting the years to complete the process three took approximately the District of Columbia for preclearance. of Columbia for the District tricts. trict electing two members of the State House of Representatives at-large and one member trict electing two members of the State House of Representatives which the State admitted that it had failed to obtain preclearance for all of the voting changes failed to obtain preclearance which the State admitted that it had In August 2002, members of the Oglala and Rosebud Sioux Tribes in Shannon and Todd in Shannon and Todd and Rosebud Sioux Tribes In August 2002, members of the Oglala Under the plaintiffs’ proposed plan, District 26 would be split into 26A and 26B for the State Under the plaintiffs’ proposed districts: Districts 27 and 28A. District 27 had a 90 percent Native-American population. Native-American districts: Districts 27 and 28A. District 27 had a 90 percent 600 statutes and regulations that affected elections or voting in Shannon and Todd counties, and affected elections or voting in Shannon that 600 statutes and regulations fewer than 10 were submitted for preclearance. submitted for yet fewer than 10 were voting strength were authorization for municipalities to enact numbered place systems, which to enact numbered authorization for municipalities were voting strength voting changes for preclearance. State to submit a remedial plan, but the State refused to do so. The district court adopted plan, but the State refused State to submit a remedial Section 2 of the VRA by packing one district with Native Americans at the expense of allow Section 2 of the VRA by packing one Senate, the U.S. House of Representatives, and governor (see Chapter 5 for more detail detail and governor for more (see Chapter 5 of Representatives, Senate, the U.S. House Section 5.” 26A. As discussed in Chapter 5, one method of diluting a minority group’s voting power is to voting power is to of diluting a minority group’s As discussed in Chapter 5, one method “PACKING” MINORITIES INTO A DISTRICT “pack” the minorities into as few districts as possible. In 2006, a federal appeals court found “pack” the minorities into as few districts

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, - - 179 e malappor They obtained 188 When evidence demonstrated

183 187 The county then adopted a plan that The county then adopted a plan that 185 Although the court had ruled on the mal- Although the court had ruled on the - the court ruled the apportionment uncon 186 184 “[N]o Native Americans had ever been elected “[N]o Native Americans had ever been 181 As a result of that denial of preclearance, the three- of that denial of preclearance, As a result 192 “The county . . . redrew its districts in early 2007, creating [only] its districts in early 2007, creating “The county . . . redrew 189 In response to a lawsuit brought by four members of the Yankton Sioux by four members of the Yankton to a lawsuit brought In response 182 DOJ interposed an objection to the five-member plan, noting that Charles DOJ interposed an objection to the five-member plan, noting that Charles 191 But pursuant to the consent decree, the County submitted the plan to DOJ for But pursuant to the consent decree, 190 While the ideal district size—one where all districts have the same population—was all districts have the same population—was size—one where While the ideal district 180 preclearance. percent from equally apportioned districts). equally apportioned from percent member plan remains in effect today. member plan remains Mix County and the State of South Dakota have a history of voting discrimination against Mix County and the State of South Dakota have a history of voting discrimination Native Americans made up 29.5 percent of the population of Charles Mix County, which was of the population of Charles Mix County, made up 29.5 percent Native Americans sure in November 2006. in November sure Native Americans and that support for the effort to change the number of county commis Native Americans and that support for the effort to change the number stitutional and ordered that the districts be redrawn. that stitutional and ordered strength.” Dakota ruled that county commissioner districts in Charles Mix County “[we]r commissioner districts in Charles Dakota ruled that county sioners increased dramatically following a Native-American candidate’s success in the June success dramatically following a Native-American candidate’s sioners increased apportionment claim, the plaintiffs’ other claims were pending, and the parties entered into a pending, and the parties entered other claims were apportionment claim, the plaintiffs’ of Section 3(c) of the VRA. until 2024 under the provisions created one majority-Native American district out of three, and in 2006 that district elected a out of three, one majority-Native American district created enough signatures to get the proposal on the ballot, and county voters approved the mea- on the ballot, and county voters approved to get the proposal enough signatures consent decree in December 2007 under which the County became subject to preclearance in December 2007 under which the County became subject to preclearance consent decree governed by a three-member County Commission elected from three single-member dis- three County Commission elected from governed by a three-member change that would have again diluted Native-American representation. change that would have again diluted one majority-[Native American] district out of five, thus diluting [Native-American] voting one majority-[Native American] district out of five, thus diluting [Native-American] tioned in violation of the one-person-one-vote standard of the Equal Protection Clause.” of the Equal Protection the one-person-one-vote standard tioned in violation of tribal member to represent it on the Commission. tribal member to represent from the districts.” from that it would be possible to draw districts with a total deviation of less than 10 persons that it would be possible to draw districts tricts. townships, towns, or cities when creating voting precincts. townships, towns, or cities when creating without splitting a single township, town, or city, without splitting a single township, town, DISTRICTS 3,117, district populations ranged from 2,850 persons to 3,443 persons (a deviation of 19 2,850 persons to 3,117, district populations ranged from voters circulated a petition to increase the number of commissioners from three to five—a three from the number of commissioners a petition to increase voters circulated voting strength of a minority group. In 2005, the U.S. District Court for the District of South U.S. District Court for the District of In 2005, the of a minority group. voting strength TWO FORMS OF VOTE DILUTION: MALAPPORTIONMENT AND THE CREATION OF NEW CREATION OF AND THE MALAPPORTIONMENT OF VOTE DILUTION: TWO FORMS Shortly after the court ruled in the plaintiffs’ favor on the malapportionment claim, however Shortly after the court ruled in the plaintiffs’ 2006 Democratic primary election. As discussed in Chapter 5, when districts are malapportioned it can impermissibly dilute the malapportioned it can impermissibly 5, when districts are As discussed in Chapter Tribe, the county justified the malapportionment by pointing to its policy against splitting the county justified the malapportionment by pointing Tribe, egister The site for early voting and late registration was a great distance from distance from was a great and late registration The site for early voting 193 sought to have a satellite office sought to have a The plaintiffs in Brooks Day. Election late—for 46 days before Brooks v. Gant, Native v. 6, in Brooks As discussed in detail in Chapter equally. not benefit all groups registration sites. registration and county defendants agreed to provide early voting at the satellite locations proposed by locations proposed early voting at the satellite to provide and county defendants agreed access to vehicles and high rates of poverty, essentially meant that most Native Americans meant that most Native Americans essentially and high rates of poverty, access to vehicles for early voting established on the reservation. The case settled when South Dakota officials The case settled for early voting established on the reservation. could vote only on Election Day and most non-Native Americans could vote—and r Election Day and most non-Native Americans could vote only on the plaintiffs through the year 2018. the plaintiffs through where most Native Americans in Shannon County lived; that distance, combined with limited in Shannon County lived; that distance, most Native Americans where South Dakota also provides an example of how expanding access to the ballot often does of how expanding access to an example provides South Dakota also UNEQUAL ACCESS TO EARLY VOTING SITES AND LATE REGISTRATION VOTING SITES AND ACCESS TO EARLY UNEQUAL Americans in Shannon County, South Dakota, sought equal access to early voting and late equal access to early voting and South Dakota, sought County, Americans in Shannon

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- 198 One While 196 197 when it ohibited the 200 In 1923, the 199 epresentation, and epresentation, dinance that pr 201 “Asian Americans are underrepresented in almost underrepresented are “Asian Americans 194 Ongoing discrimination, low rates of political participation and r low rates of political participation Ongoing discrimination, 195 laborers to pay $2.50 per month. Similarly, commutation taxes required ship owners commutation taxes to post a $500 bond (or a Similarly, police tax, designed to discourage Chinese immigration, forced all Chinese designed to discourage Chinese immigration, police tax, payment of $5 to $50 per passenger) on each Chinese immigrant coming into payment of $5 to $50 per passenger) on each Chinese immigrant a “miner’s tax” had to be paid by any foreigner (miner or not) tax” “miner’s a example, For who lived in a mining district, targeting the Chinese in effect if not by name. targeting the Chinese in effect if not by name. who lived in a mining district, the country, and more for mentally ill or disabled passengers. The 1862 Chinese The for mentally ill or disabled passengers. and more the country, laws and social and economic discrimination. Although they are currently the fastest-growing the fastest-growing currently they are economic discrimination. Although laws and social and justify the need for continued protection under the Voting Rights Act. Rights under the Voting continued protection justify the need for ment.” minority group in the United States, minority group property and business ownership. One scholar noted, property popularity, leading to widespread denial of social, political, and economic rights. Immigrant denial of social, political, and economic leading to widespread popularity, meaning of the term in the statute, and thus not eligible for U.S. citizenship. meaning of the term in the statute, and ing of the Act; he was therefore ineligible to become a naturalized citizen. ineligible to become a naturalized ing of the Act; he was therefore specified that only “free white person[s]” were eligible to become naturalized citizens. white person[s]” were specified that only “free unmet language assistance needs continue to impede Asian-American enfranchisement and Asian-American enfranchisement and needs continue to impede unmet language assistance every measure of political participation, from ballot boxes to the hallowed halls of govern ballot - from of political participation, every measure of the most powerful barriers to citizenship was the U.S. Naturalization Act of 1790, which of the most powerful barriers to citizenship courts continued to deny immigrants of Asian descent naturalization privileges. In 1878, the courts continued to deny immigrants cal and economic disenfranchisement. Foreign-born Asians had long been excluded from Asians had long been excluded from Foreign-born cal and economic disenfranchisement. grant who was imprisoned in 1885 for violating a San Francisco or communities were targeted by discriminatory laws and regulations that placed restrictions on that placed restrictions targeted by discriminatory laws and regulations communities were the 1870 Naturalization Act extended citizenship rights to individuals “of African descent,” the 1870 Naturalization Act extended tion because Chinese immigrants, as “Mongolians,” were not “white person[s]” within the “Mongolians,” were tion because Chinese immigrants, as Yick Wo, a Chinese immi- Wo, Yick an appeal from Court heard Hopkins, the Supreme v. Wo In Yick determined that Thind, an Indian national, was “Caucasian” but not “white” within the mean determined that Thind, an Indian national, U.S. Court of Appeals for the Ninth Circuit interpreted the Act to bar Chinese naturaliza- interpreted U.S. Court of Appeals for the Ninth Circuit IV. ASIAN AMERICANS IV. United States v. Bhagat Singh Thind, Bhagat a similar holding in United States v. Court reached Supreme History and BackgroundHistory American political life due to citizenship restrictions based on race and national origin. based restrictions American political life due to citizenship Asian Americans have long been denied the right to vote through restrictive naturalization restrictive through long been denied the right to vote Asian Americans have Asians were often victims of violence and scapegoating as nativist movements gained Asians were Throughout U.S. history, Asians have been the target of discriminatory laws aimed at politi- Asians have U.S. history, Throughout

ew 216 - 204 As e 218 e only cov oficiency wer oom as well[,]” wher

219 206 Asian Indians and Filipinos were permit- Asian Indians and Filipinos were 212 It was not until 1943 that Chinese-born 211 Korematsu v. United States, v. of Korematsu In the 1944 case case, also which was at issue in the Korematsu 207 209 For Japanese and other Asian ethnic groups, that right came in that right came groups, For Japanese and other Asian ethnic

213 At that time, many laundries were owned by residents of Chinese by residents owned laundries were At that time, many 210 202

Executive Order 9066, Executive Order 217 This led to “unprecedented” immigration to the United States from Asia. immigration to the United States from This led to “unprecedented” 208 215 In its decision the Court asserted that, “[Voting] is regarded as a fundamental politi- as a fundamental is regarded Court asserted that, “[Voting] In its decision the

and requests for approval from Chinese business owners were uniformly denied. were Chinese business owners from for approval and requests 205 214 203 language minority status. Thus, Asian Americans who were eligible to vote were often to vote were eligible language minority status. Thus, Asian Americans who were national origin. process when it excluded U.S. citizens who were of Japanese origin from certain designated from of Japanese origin when it excluded U.S. citizens who were process of II, which included large regions War World within the United States during military areas residing in these areas. residing required to provide bilingual voting materials for designated language minorities. Yet areas areas bilingual voting materials for designated language minorities. Yet to provide required by 107.8 percent. residents were first permitted to become citizens. first permitted were residents prevented from exercising their rights by English literacy and language requirements. exercising from prevented restricted immigration from Asia; the majority of people of Asian descent in the United States Asia; the majority of people of Asian descent immigration from restricted ing many Americans to support exclusion. ing many Americans ize and attain the rights of American citizenship. Prior to 1965, U.S. immigration policy heavily ize and attain the rights of American Board of Supervisors. Board Representative Edward R. Roybal noted in 1975, Asian Americans “bor[e] the brunt of this R. Roybal noted in 1975, Asian Americans Edward Representative Between 1976 and 1988 the Asian and Pacific Islander population in the United States gr Between 1976 and 1988 the Asian and Pacific Islander population in the Despite this victory, the decision inflamed opposition to the rights of Asian immigrants, lead- to the rights of Asian immigrants, the decision inflamed opposition Despite this victory, authorized the internment of approximately 120,000 Japanese Americans who had been 120,000 authorized the internment of approximately ered under the bilingual assistance provisions in a few jurisdictions because there were few were in a few jurisdictions because there the bilingual assistance provisions under ered origin ownership of laundries constructed from certain building materials without the approval of the of the the approval materials without certain building from of laundries constructed ownership exclusionary practice not only at the voting booth but in the classr cal right, beacuase [it is] preservative of all other rights.” [it is] preservative cal right, beacuase franchisement. In 1965, the Hart-Celler Act removed immigration restrictions on the basis of immigration restrictions Act removed franchisement. In 1965, the Hart-Celler ted to naturalize in 1946. the Supreme Court found that the federal government did not violate equal protection or due found that the federal government Court did not violate equal protection the Supreme Coast. the West with significant Asian-American populations with limited English pr It was only relatively recently that Asian immigrants were finally granted the ability to natural- that Asian immigrants were recently It was only relatively during this time were native-born Americans. during this time were When Congress enacted Section 203 of the Voting Rights Act in 1975, jurisdictions were Rights Act in 1975, jurisdictions were enacted Section 203 of the Voting When Congress Clause. Asian-American students faced profound discrimination. Asian-American students faced profound As immigration from Asia increased, Asian Americans still faced substantial barriers to full en- Asian Americans still faced substantial Asia increased, As immigration from The Court held that the discriminatory enforcement of the law violated the Equal Protection of the law violated the Equal Protection the discriminatory enforcement The Court held that The Asian-American communities that emerged often suffered discrimination due to their The Asian-American communities that emerged often suffered 1952.

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NATIONAL COMMISSION ON VOTING RIGHTS 96 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 4 NATIONAL COMMISSION ON VOTING RIGHTS 97 Though 222 These difficulties are discussed at greater length are discussed at These difficulties 223 Asians were 5 percent of the population in 2005 and 5 percent Asians were 224 The Asian population grew by 46 percent from 2000 to from by 46 percent The Asian population grew 225 Map 4: Asian:Percentage of Voting Age Population in 2010 Indian, Asian Filipino, Chinese, including Race One Other and Vietnamese, Korean, Japanese, To help address the problem of excluding large numbers of language-minority of excluding large numbers of the problem help address To This amendment expanded Section 203 coverage to areas such as New York such as New York expanded Section 203 coverage to areas This amendment 220 221 nority language group were limited English proficient and the other criteria for coverage were the other criteria for coverage were and proficient limited English were nority language group percent of the country’s population. the country’s of percent places where limited English proficient voting age citizens from a particular Asian language Asian language a particular from voting age citizens proficient limited English places where protections under the Voting Rights Act. under the Voting protections bilingual assistance under Section 203 certainly removed some barriers to Asian-American certainly removed bilingual assistance under Section 203 below. satisfied. alternative where a jurisdiction would also be covered if 10,000 voting age citizens from a mi- from if 10,000 voting age citizens would also be covered a jurisdiction alternative where and Korean communities benefitted from the newly offered language assistance. the newly offered communities benefitted from and Korean comprised at least 5 percent of the citizen voting age population, which was the required was the required citizen voting age population, which of the 5 percent comprised at least enfranchisement, Asian Americans have historically had limited success in invoking other enfranchisement, Asian Americans have threshold. will be at least 9 percent in 2050. will be at least 9 percent In 1960, there were fewer than 1 million Asian Americans in the United States, less than 0.5 fewer than 1 million Asian Americans in were In 1960, there voters who did not meet the 5 percent coverage formula originally enacted in 1975, the coverage formula originally enacted meet the 5 percent voters who did not County for Chinese languages and Los Angeles County, where Chinese, Filipino, Japanese, Chinese, where languages and Los Angeles County, County for Chinese Geography 1992 Voting Rights Language Assistance Act expanded the coverage formula to include an Act expanded the coverage Rights Language Assistance 1992 Voting d The 234 “[L]imited ashington, In 2008 236 The ethnic di- 233 235 e at one time ough “mobiliza- Research indicates Research nout rates. elatively little electoral elatively little electoral 238

231 For example, while one-third of the Asian- of the one-third For example, while 229 - owed mostly to immigra rate is growth This high 226

230 232

237 227 Notably, although Asian-American populations are relatively concentrated in urban concentrated relatively are although Asian-American populations Notably, 228 district’s electorate. Of the eleven congressional districts, all but one are in Of the eleven congressional districts, electorate. district’s more of the electorate in seventy-five districts. more of the electorate in seventy-five congressional districts in which Asian Americans make up 20% or more of the Asian congressional districts in which Even at lower levels of jurisdictional granularity, there are only eleven there are only Even at lower levels of jurisdictional granularity, California or Hawaii. Among municipalities, Asian Americans make up 25% or Americans make up Asian Among municipalities, California or Hawaii. high among Japanese Americans and quite low among Chinese Americans. power, even in California, New York. Hawaii, and power, naturalization requirements or tricky registration and voting rules” likely all contribute to low or tricky registration naturalization requirements mostly on the coasts. New destination cities include Houston, Minneapolis, and W New destination cities include Houston, mostly on the coasts. political power and sustained disadvantages,” minimal availability of aid thr socioeconomic factors would normally suggest that their turnout rate would be higher. scales, indicators usually associated with higher levels of political participation. scales, indicators usually associated and 2012, Asian Americans and Latinos voted at roughly the same rate even though other the same and 2012, Asian Americans and Latinos voted at roughly D.C. centers, this population distribution allows Asian Americans to exert r distribution allows Asian Americans centers, this population electoral impact. only voting mechanisms, in much the same way that African Americans wer devices. voting by literacy tests and other from effectively prevented foreign-born. turnout rates. tion networks and organizational support,” and “institutional constraints such as haphazar tion networks and organizational support,” and “institutional constraints such tion, with 2012 statistics suggesting that 74 percent of Asian adults in the United States are States are of Asian adults in the United suggesting that 74 percent tion, with 2012 statistics discrimination. Asian Americans have long been discriminated against in the form of English- discrimination. Asian Americans have long been discriminated against in voting gaps are not uniform across Asian groups—for example, participation rates are fairly example, participation rates are Asian groups—for not uniform across voting gaps are versity among Asian Americans generally and the range in lengths of residence in the United versity among Asian Americans generally and the range in lengths of residence voter registration and turnout higher up on the education and income rates, despite being voter registration States make it difficult to pinpoint explanations for Asian American tur Compared to other racial minority groups protected by the VRA, Asian Americans have low by the VRA, Asian Americans protected to other racial minority groups Compared California’s total electorate. total California’s 2010, a rate higher than any other group. higher than any 2010, a rate Participation Asian-American participation rates are likely also attributable to past and ongoing language Asian-American participation rates are As can be seen from Map 4, Asians are concentrated in urban areas, and continue to live in urban areas, concentrated are Map 4, Asians As can be seen from American population resides in California, this population accounts for only 12 percent of in California, accounts for only 12 percent this population American population resides d the group’s Americans has thus limited the group’s The demographic distribution of Asian

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240

e is a high voting 244 Of these officials, most e ther 241 Indeed, the 2006-2008 American Community Survey Data from the 2008 National Asian American Survey the 2008 National Asian American Data from Additionally, according to a 2012 report by Asian & to a 2012 report according Additionally, 245 242 If one excludes California and Hawaii from the data pool, the data If one excludes California and Hawaii from 239 243

246 long as people can remember. Through the settlement process in the California long as people can remember. district, [are] able to have meaningful opportunities to vote,” Joanna Cuevas [are] able to have meaningful opportunities to vote,” district, redistricting process and be able to ensure that Asian-American voters, as one Asian-American voters, redistricting process and be able to ensure that Ingram, an attorney with the Lawyers’ Committee for Civil Rights of the San an attorney Ingram, and Latino, yet their board of supervisors for as have been predominantly white and Latino, at the NCVR California state hearing. testified Area, Bay Francisco there to the district-based system. San Mateo County is over 40 percent Asian 40 percent San Mateo County is over there to the district-based system. Voting Rights Act, communities will be able to engage in a community-based communities Act, Rights Voting “[W]e settled a case with San Mateo County […] to change the at-large system “[W]e settled a case with San Mateo home. The “rate is 89 percent among foreign-born adults and...31 percent among native- adults and...31 percent among foreign-born home. The “rate is 89 percent represent jurisdictions in California, Hawaii, and New York, all of which are Asian-American all of which are jurisdictions in California, Hawaii, and New York, represent - shows that that it becomes increas research scarce, population centers. Although data are may not speak English proficiently. members of state legislatures, and two Asian American governors. members of state legislatures, percent of Korean Americans in Los Angeles County used some form of language assistance County used some form of language Americans in Los Angeles of Korean percent born Asian Americans.” reported that 75 percent of Asian-American adults speak a language other than English at of Asian-American adults speak a that 75 percent reported ingly difficult for an Asian-American candidate to get elected the higher the office, indicating ingly difficult for an Asian-American in the 2008 presidential election.” in the 2008 presidential indicated they would be more likely to vote if language assistance was provided. to vote if language assistance was likely be more indicated they would shows that 22 percent of Asian Americans are represented by an Asian member of the represented of Asian Americans are shows that 22 percent Pacific Islander American (APIA) Vote, more than 1/5 of Asian-American voters surveyed than 1/5 Vote, more (APIA) Pacific Islander American a majority of Asian Americans are foreign born and thus are not native English speakers, and born foreign and thus are a majority of Asian Americans are concentration of Asian Americans. city council, 17 percent have an Asian state representative and 8 percent have an Asian- and 8 percent have an Asian state representative city council, 17 percent that many elected officials may only get elected in those places wher that many elected officials may only that language assistance materials are of substantial importance to Asian-American voters. Asian-American importance to of substantial are assistance materials that language those numbers drop to 10 percent, 5 percent, and 1 percent, respectively. and 1 percent, 5 percent, to 10 percent, those numbers drop Some of the gap in Asian-American registration and voting may be explained by the fact that Some of the gap in Asian-American registration Types of Discrimination Elected Officials According to a 2013 report by Asian Americans Advancing Justice, “30 percent of Chinese Advancing Justice, “30 percent by Asian Americans to a 2013 report According of Vietnamese60 Americans and Americans, 50 percent of Filipino Americans, 33 percent American member of Congress. There are currently 11 Asian-American members of the U.S. House of Representatives, 98 members of the U.S. House of Representatives, 11 Asian-American currently are There - - - - Of these,

In Boston, the In Boston, the 253 254 249 - proce objections addressed of the three Two 255 In one example from that year, AALDEF observ that year, In one example from

248 251 In both the 2008 and 2012 elections AALDEF found in- In both the 2008 and 2012 elections 252 The organization reported that, “Language assistance, such as interpret that, “Language assistance, such as reported The organization 247 percent of respon the AALDEF survey found 38 percent None the less, in the 2008 election 250 numbers of Bengali interpreters. mandates, poll workers were cavalier in providing language assistance to voters. In our language assistance to voters. In our cavalier in providing mandates, poll workers were materials available to help them vote.” reached, applicable through the end of 2008, in which language assistance was mandat the end of 2008, in which applicable through reached, is particularly true with regard to the failure to provide required language assistance and poll language assistance and required to provide to the failure with regard is particularly true in Chapter 7, Bengali ballots were not provided to voters in Queens, New York; interpreters interpreters in Queens, New York; to voters not provided in Chapter 7, Bengali ballots were stances of hostility and rudeness, and occasional outright racist attitudes among poll workers. to provide failure a jurisdiction’s of successful challenges to to 2014, 17 percent 1995 From survey, 254 Asian American voters complained that there were no interpreters or translated or translated no interpreters were 254 Asian American voters complained that there survey, Education Fund (AALDEF), discrimination against Asian Americans persists at the polls. This Americans persists at the polls. This discrimination against Asian Education Fund (AALDEF), the polls. speaking voters at adequate bilingual voting assistance involved one or more Asian language. Asian adequate bilingual voting assistance involved one or more ed. case were Bengali, Ilocano, Japanese, Korean, Tagalog, and Vietnamese. Tagalog, Bengali, Ilocano, Japanese, Korean, case were ers found that in New York City, where language assistance is required by law, a quarter of of a quarter law, by is required language assistance where City, ers found that in New York ers or translated voting materials, if any, was far from adequate. Notwithstanding federal adequate. Notwithstanding federal was far from materials, if any, ers or translated voting the Chinese and Korean interpreters needed were absent from the polls. absent from needed were interpreters the Chinese and Korean who spoke their language or dialect.” to a concentrated Asian-American population. Accordingly, a proportionally small number of small number of a proportionally to a concentrated Asian-American population. Accordingly, ties newly covered by Section 203 a result of the 2011 coverage determinations. As discussedAs determinations. coverage 2011 the of result a 203 Section by covered newly ties workers who are poorly trained on how to assist predominantly Asian and Asian-language- how to assist predominantly poorly trained on workers who are were lacking throughout New York City; and in Hamtramck, Michigan, there were insufficient were City; and in Hamtramck, Michigan, there New York lacking throughout were dents in Boston “wished to receive oral language assistance [but] could not find interpreters assistance [but] could not find interpreters oral language dents in Boston “wished to receive In 2008, AALDEF observers monitored 229 poll sites in 11 targeted states and surveyed and surveyed 229 poll sites in 11 targeted states observers monitored In 2008, AALDEF for discrimination against under Section 2 of the VRA for discrimination against United States DOJ had sued the city discrimination against these minority voters. dures adopted by Georgia and Texas for verifying the citizenship status of voter registration for verifying the citizenship status of voter registration by Georgia and Texas adopted dures Of those jurisdictions formerly covered under Section 4 of the VRA, relatively few are home few are under Section 4 of the VRA, relatively Of those jurisdictions formerly covered Section 5 objections concerned Asian-American voters. dealt with denials during this time period, only three Of the 113 Section 5 preclearance Chinese was the language most often involved; the other languages involved in at least one Chinese was the language most often involved; the other languages involved Chinese interpreters and more than a quarter of Vietnamese voters, and a settlement was and more Chinese interpreters As is documented in every election cycle by the Asian American Legal Defense and Legal Defense and Asian American election cycle by the in every As is documented According to AALDEF observers, problems continued in 2012, especially with regard to locali- in 2012, especially with regard continued to AALDEF observers, problems According 16,665 voters.

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258 Because the 257 ocess. eater Bethel AME Church. This suggests that Asian Americans continue to face additional bur to face additional continue that Asian Americans This suggests 256 precondition of being able could satisfy the first Gingles precondition Asian Americans jurisdictions where necessary for a successful vote dilution challenge under Section 2 of the VRA. vote dilution challenge under necessary for a successful population of Asian Americans in most jurisdictions is proportionally small, there are not many are small, there Americans in most jurisdictions is proportionally population of Asian port will explore in greater depth the various ways in which voting laws and practices impact in greater port will explore ated with demonstrating their eligibility to participate in the political pr their eligibility to participate in ated with demonstrating applicants. ful challenges under Section 2 due to patternsful challenges under of population distribution. to constitute a voting majority in a geographically compact single-member district, which is single-member district, which is majority in a geographically compact to constitute a voting the right to vote of these racial and ethnic minorities. the right to vote of these racial and ethnic PHOTO CREDIT: JOSEPH GRANT PHOTO CREDIT: Hearing witnesses listen to testimony at the NCVR Nashville hearing held at the Gr As referenced above, Asian Americans also face particular difficulties in bringing success- face particular difficulties in bringing above, Asian Americans also As referenced As discussed above, voting discrimination affecting African Americans, Latinos, Native As discussed above, voting discrimination re- In the next two chapters, this a significant issue. Americans, and Asian Americans remains V. CONCLUSION V. “In the June 2010 Democratic primary for the Attorney General race, looking within the boundaries of Assembly District 53 […], the candidate supported by an estimated 83% of Asian American voters received support from only an estimated 4% of non-Asian American voters.”

­–Eugene Lee of Asian Americans Advancing Justice, Los Angeles at the NCVR California state hearing PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 103

2 5 ed candidates eferr -cut as what constitutes a test

3

6 As discussed in Chapter 1, Sections 2 and 5 of the VRA prevent minority vote dilu- As discussed in Chapter 1, Sections 2 and 5 of the VRA prevent , Alabama voters challenged the constitutionality of Alabama’s legislative of Alabama’s In Reynolds, Alabama voters challenged the constitutionality 4 1 instead. are devalued. This form of discrimination is called “vote dilution” and is the subject of the “vote dilution” and is the subject of the devalued. This form of discrimination is called are are most common in the context of redistricting and in the use of at-large elections or common in the context of redistricting most are has been vote dilution. Because the VRA’s ban on tests and devices made it more difficult on tests and devices made it more ban has been vote dilution. Because the VRA’s populated districts. In doing so, the Court stated that “[t]he right of suffrage can be denied populated districts. In doing so, the Court vote just as effectively as by wholly of a citizen’s by a debasement or dilution of the weight franchise.” of the exercise the free prohibiting because plaintiffs must first satisfy three preconditions (regarding district size and geographi- (regarding preconditions because plaintiffs must first satisfy three because of white bloc voting) and then prevail on the multi-factor and all-inclusive “totality of because of white bloc voting) and then prevail making it more difficult for citizens to vote, commonly called “vote denial,” or ballot access commonly called “vote denial,” or ballot access difficult for citizens to vote, making it more and 7. The second form consists of discussed in Chapters 6 These issues are restrictions. chapter. present districts, which had not been redrawn in decades. The existing plan allotted, for example, in decades. The existing districts, which had not been redrawn because they weakened the voting strength of minority voters. Vote dilution violations of minority voters. Vote because they weakened the voting strength I. INTRODUCTION I. or device. Indeed, cases based on the Section 2 results standard are notoriously complex are standard or device. Indeed, cases based on the Section 2 results cal compactness, minority political cohesion, and the defeat of minority-pr have the intent or result of of consists of practices that have the intent or result one of two categories. The first form their votes voting but where from not prevented minority voters are where circumstances over 600,000 people to one Alabama Senate district and fewer than 20,000 to two others. over 600,000 people to one Alabama v. Sims. v. Nonetheless, courts have repeatedly found Section 2 vote dilution violations and the Nonetheless, courts have repeatedly Department of Justice (DOJ) has interposed hundreds of Section 5 objections to practices of Section Department of Justice (DOJ) has interposed hundreds for jurisdictions to prevent voters from voting, jurisdictions moved to dilute the minority vote voters from for jurisdictions to prevent Minority Vote Dilution Vote Minority Since the late 1960s, the predominant form of discrimination suffered by minority voters form of discrimination suffered Since the late 1960s, the predominant tion, but what constitutes vote dilution is usually not as clear the circumstances” balancing test. the circumstances” CHAPTER 5 CHAPTER PHOTO CREDIT: ANDRIA LO PHOTO CREDIT: As discussed in various places in this Report, most forms of voting discrimination fall into Report, most forms of voting discrimination fall into As discussed in various places in this Voting Discrimination, 1995–2014: Discrimination, Voting The Supreme Court found that this violated the equal protection rights of voters in the most found that this violated the equal protection Court The Supreme The Supreme Court first recognized the concept of vote dilution in the 1964 case Reynolds recognized the concept of vote dilution in first Court The Supreme - ent

ns. The two 10 Conversely, where where Conversely, 8 n of voting along racial Analysts examine a series 9 emains a prevalent and per emains a prevalent In areas where racially polarized voting racially where In areas 7 PREVALENCE independent and state-hired, have made findings of racially polarized voting. These findings independent and state-hired, lines where voters of the same race support the same candidate who is different from the from same candidate who is different voters of the same race support the lines where large elections that dilute the voting strength of minority communities.” of minority communities.” large elections that dilute the voting strength amount of white and minority support each candidate received. The accuracy of the analysis amount of white and minority support each candidate received. and the variation of the racial demographics among the precincts. exists, there is an increased need for vigilance against attempts to dilute minority power. As need for vigilance against attempts to dilute minority power. an increased is exists, there have recognized the existence of racially polarized voting on both national and state levels. have recognized most frequently used analyses are Bivariate Ecological Regression Analysis and Ecological Bivariate Ecological Regression used analyses are most frequently the to estimate in the precinct, received and the number of votes each candidate precinct the number of precincts, depends on the quality of the demographic data for each precinct, preferences are not correlated to the race of those voters. to the race not correlated are preferences political candidates. By definition, racially polarized voting is “a patter political candidates. By definition, racially multi-member districts. These two phenomena are discussed below, after a discussion of after below, discussed are two phenomena districts. These multi-member of vote dilution. which is a necessary component racial polarized voting, racially polarized voting “enables the use of devices such as multi-member districts and at- racially polarized voting “enables the II. RACIALLY POLARIZED VOTING AND ITS ONGOING AND ITS ONGOING VOTING POLARIZED RACIALLY II. sistent phenomenon. The many successful vote dilution claims under Section 2 of the VRA sistent phenomenon. The many successful vote dilution claims under Section Inference Analysis. Both of these analyses use two variables, the racial composition of each Both of these analyses use two variables, the racial composition of each Analysis. Inference In the process of proving minority vote dilution, plaintiffs typically establish the presence minority vote dilution, plaintiffs typically establish the presence of proving In the process constitute proof of its persistence because one must prove the existence of racially polarized of its persistence because one must prove constitute proof of racially polarized voting by conducting a statistical analysis of voting patter of racially polarized voting by conducting candidate supported by voters of a different race.” candidate supported by voters of a different of elections to determine whether a pattern racially polarized voting exists. of Fifty years after the passage of the VRA, racially polarized voting r Racially polarized voting occurs when whites and minorities consistently support differ Racially polarized voting occurs when Northwest Austin Municipal Utility District No. One v. Mukasey, No. One v. the district court explained in Northwest Austin Municipal Utility District voters do not typically vote along racial lines, racial vote dilution cannot occur because voter voters do not typically vote along racial voting to be successful. However, the proof does not stop there. Experts and scholars, both Experts and scholars, both does not stop there. the proof voting to be successful. However, Additionally, DOJ has cited racially polarized voting in interposing hundreds of Section 5 DOJ has cited racially polarized voting in interposing hundreds Additionally, Findings of Racially Polarized Voting Regarding State Regarding Voting Polarized of Racially Findings Plans Redistricting How Analyses of Racial Bloc Voting are Performed are Bloc Voting of Racial How Analyses

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5

NATIONAL COMMISSION ON VOTING RIGHTS 104 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 105 - e The 14 e a high Moreover, 19 The Tenth Circuit di- Circuit The Tenth ed candidate.’” 13 eferr challenged the constitutionality of the 16

15 - challenged the 2000 state and congres 18 The following are cases since 1995 regarding regarding cases since 1995 The following are

11 17 Hispanic voters challenged the post-1990 State House redistricting State House redistricting Hispanic voters challenged the post-1990 12 limited local success in being elected or appointed to political office.” limited local success in being elected ly politically cohesive group and whites engage in significant white-bloc voting.” ly politically cohesive group in both primary elections and general elections. Statewide, black citizens generally ar in both primary elections and general elections. Statewide, black citizens South Carolina as a bloc to enable it…usually to defeat the [American Indians’] pr as a bloc to enable it…usually to defeat Statewide Redistricting Plans Redistricting Statewide plaintiffs ultimately lost the case on other grounds. plaintiffs ultimately lost the case on plan, alleging that the plan failed to draw a majority Hispanic district, thus violating Section plan, alleging that the plan failed to draw race. This voting pattern is general throughout the state and is present in all of the challenged the state and is present race. This voting pattern is general throughout , the Ninth Circuit Cooney, the Ninth Circuit In Old Person v. plan adopted after the 1990 census. redistricting rected the district court to impose a remedy that drew a majority Hispanic district in Southern that drew the district court to impose a remedy rected statewide redistricting plans where courts have found racially polarized voting: courts have found racially polarized plans where statewide redistricting sional redistricting plans of South Carolina. In its opinion, the district court directly addressed addressed In its opinion, the district court directly plans of South Carolina. sional redistricting Sanchez v. Colorado, In Sanchez v. objections against proposed voting changes. Thus, racially polarized voting continues to be voting continues Thus, racially polarized voting changes. against proposed objections on the grounds that race was the predominant factor considered in redrawing election dis- in redrawing factor considered that race was the predominant on the grounds Native American voters in Montana challenged the constitutionality of the state legislatur Native American voters in Montana challenged House and Senate districts in this litigation.” Over the last three decades, courts across the country have consistently acknowledged have consistently acknowledged the country across decades, courts Over the last three Gingles ruling. Thornbug v. Court’s Supreme Colorado Carolina continues to be racially polarized to a very high degree, in all regions of the state and of the in all regions continues to be racially polarized to a very high degree, Carolina Court of Appeals “conclude[d] that the white majority in the four districts ‘votes sufficiently Court of Appeals “conclude[d] that the Colorado. the continued presence of racially polarized voting while applying the factors outlined in the polarized voting while applying the of racially the continued presence totality of circumstances [that] racial polarization drive the voting community in HD 60 despite [that] racial polarization drive the voting community in HD 60 despite totality of circumstances the presence of severe and persistent racially polarized voting, stating that “[v]oting in South and persistent racially polarized voting, of severe the presence tricts. The district court noted, “[i]n South Carolina, voting has been, and still is, polarized by voting has been, tricts. The district court noted, “[i]n South Carolina, widespread. Examples of the aforementioned findings are discussed below. below. discussed are findings aforementioned Examples of the widespread. 2 of the VRA. The Tenth Circuit of Appeals found that the plaintiffs “established under the of Circuit 2 of the VRA. The Tenth Montana Colleton County Council v. McConnell in Colleton County Council v. Voters Smith v. Beasley African-American and white voters in Smith v. Judicial Findings of Racially Polarized Voting in Challenges to in Voting Polarized of Racially Findings Judicial 1995 State House and Senate redistricting plans in South Carolina. The challenge was raised plans in South Carolina. 1995 State House and Senate redistricting - ed eferr

24 found that the post- esence of both cohesive 24b eed with expert testimony African-American voters 24a The district court ruled that the redistricting The district court ruled that the redistricting 26 voters challenged the 2001 Massachusetts State voters challenged 21

20 The district court concluded that “substantial evidence, both statistical and The district court concluded that “substantial evidence, both statistical and 25 The district court struck down the redistricting plan and ordered the State to plan and ordered The district court struck down the redistricting 23 The district court found racially polarized voting, noting “the pr The district court found racially polarized 22 candidate of choice as well as an equal opportunity to elect a white candidate as well as an equal opportunity candidate of choice of choice in a primary election in South Carolina, a majority-minority or very a majority-minority of choice in a primarySouth Carolina, election in near majority-minority black voting age population in each district remains a black voting age population near majority-minority minimum requirement. [I]n order to give minority voters an equal opportunity to elect a minority opportunity to voters an equal to give minority [I]n order lay, demonstrates that voting in South Dakota is racially polarized among whites and Indians.” demonstrates that lay, jority-minority districts, reduced the minority population into one district and “super-packed” one district and “super-packed” the minority population into jority-minority districts, reduced South Dakota ally defeat the [Indian] preferred candidate.’” ally defeat the [Indian] preferred - voting age popula of the district’s up 98 percent another district so that minorities made under Section 2 based upon a dilution of minority voting strength in the western portion of of minority voting strength under Section 2 based upon a dilution prepare and submit a new plan consistent with Section 2 of the Voting Rights Act. 2 of the Voting and submit a new plan consistent with Section prepare but claimed that white voters do not usually vote as a bloc to defeat candidates supported but claimed that white voters do not the ruling in favor of plaintiffs, the district court’s from by African-American voters. On appeal districting plan. plan violated the VRA and the State was ordered to redraw district lines in compliance with district lines in compliance to redraw plan violated the VRA and the State was ordered successfully challenged a 1994 redistricting plan for the Tennessee House of Representatives House of Representatives plan for the Tennessee successfully challenged a 1994 redistricting In response to a lawsuit filed by Latino voters in district court in In response a three-judge Wisconsin, Black Political Task Force v. Galvin, v. Force In Black Political Task , v. Sunquist African-American Affairs Council Tennessee In West In addition, “the white majority in District 26 ‘votes sufficiently as a bloc to enable it… to usu In addition, “the white majority in District 26 ‘votes sufficiently as a bloc candidate.” Bone Shirt v. Hazeltine challenged a 2001 South Dakota legislative Native American voters in Bone Shirt v. House redistricting plan. The lawsuit alleged that the redistricting plan eliminated two ma- lawsuit alleged that the redistricting plan. The House redistricting Baldus v. Members of Wisconsin, Government Accountability Board Baldus v. U.S. Court of Appeals for the Sixth Circuit affirmed. The court undertook a detailed review of court undertook a detailed affirmed. The U.S. Court of Appeals for the Sixth Circuit Section 2. that voting is polarized between Latino and white voters. the State.Tennessee agreed in the litigation that African Africans vote in a cohesive manner in the agreed the State.Tennessee that white voters in finding district court had not erred the evidence, and concluded that the legislative candidates. typically cast their ballots against minority-supported tion. 2010 plan for the State Assembly violated Section 2. The court agr Massachusetts Tennessee African-American voting and a white bloc voting staunch enough to defeat a black-pr African-American voting and a white Wisconsin

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NATIONAL COMMISSION ON VOTING RIGHTS 106 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 107 - Dr. Dr. ed

26c 26b ch revealed ch revealed During her study, During her study, 27 esear

26a

28 ity candidate. Of the 14 elections that Dr. Handley examined, she found that the majority ity candidate. Of the 14 elections that Dr. an analysis of racial bloc voting in elections during 2008 and 2010. Her r analysis of racially polarized voting in Arizona. King and Strasma found that racially polarized analysis of racially polarized voting in experts have conducted analyses of racial bloc voting and also found that racially polarized and also found that racially polarized analyses of racial bloc voting experts have conducted non-Latinos in Fresno, Orange, San Diego, Riverside, and San Bernardino Counties.” Orange, San Diego, Riverside, and San Bernardino non-Latinos in Fresno, State-Hired Expert Findings of Continuing Racial Polarization Racial of Continuing Findings Expert State-Hired In 2011, Harvard University Professor of Government King and mapping consultant Ken Gary University Professor In 2011, Harvard In 2012, Dr. Handley was hired by the Kansas Legislative Research Department to conduct by the Kansas Legislative Research was hired Handley In 2012, Dr. It is not only courts that acknowledge the existence of racially polarized voting; state-hir that acknowledge the existence of It is not only courts gressional, State House, and State Senate plans violated the VRA. State Senate plans violated the VRA. State House, and gressional, of the contests (9 of 14) showed trends of racially/ethnically polarized voting: “minority and of the contests (9 of 14) showed trends Lisa Handley conducted an analysis of voting patterns by race in recent Alaska elections. Dr. Alaska elections. Dr. of voting patternsLisa Handley conducted an analysis by race in recent Handley, Dr. to in Alaska. According voting is increasing Handley found that racially polarized Barreto also found racially polarized voting with regard to Latinos, African Americans, and found racially polarized voting with regard also Barreto Dr. Handley examined 14 statewide and legislative elections in Kansas that included a minor Handley examined Dr. University of Washington Professor of Political Science Matt Barreto and counsel for the of Political Science Matt Barreto Professor University of Washington Strasma were hired by the Arizona Independent Redistricting Commission to conduct an by the hired Strasma were California California Citizens Redistricting Commission, the official redistricting body in California,California found Commission, the official Citizens Redistricting that Kansas continues to wrestle with the issue of racially polarized voting. that Kansas continues to wrestle that racially polarized voting continues to exist in California. Specifically, Dr. Barreto stated Barreto Dr. that racially polarized voting continues to exist in California. Specifically, and to Latinos respect evidence of racially polarized voting with was strong that “there throughout Texas in finding that Texas’s 2003 congressional redistricting plan and 2011 con- redistricting plan 2003 congressional Texas’s in finding that Texas throughout white voters clearly supported different candidates.” white voters clearly supported different voting continues to exist in multiple legislative districts in the State. voting continues to exist in multiple legislative voting persists in other states. Texas At the request of the Alaska Redistricting Board, voting rights and redistricting expert Dr. expert Dr. voting rights and redistricting of the Alaska Redistricting Board, At the request Asians in Los Angeles County. Kansas As discussed later in this chapter, federal courts found that racially polarized voting exists that racially polarized voting exists federal courts found in this chapter, As discussed later Arizona Alaska “voting was more polarized in Alaska this past decade than in the previous decade.” polarized in Alaska this past decade than in the previous “voting was more cent

29 eceived 80 per 31 30 especially conservative ones—suggested that the United States is now a politics is re-segregating, with African Americans once again excluded from Americans once again excluded African with politics is re-segregating, power and representation. post-racial society. Three years later, in the region of the country most where Three years later, post-racial society. African Americans live, the South, there is strong statistical evidence that there is strong statistical the South, Americans live, African [F]ollowing the election of President Barack Obama, many political observers—[F]ollowing the election of President Barack Obama, PHOTO CREDIT: JOSEPH GRANT hearing. PHOTO CREDIT: polarized voting at the NCVR Nashville regional - not decreas polarized voting in the South is increasing, of racially degree indicated that ‘the system of the Old South.’” the segregated ways re-creating ing… [and is] in certain recognized a trend of increased polarization. During the most recent VRA reauthorization reauthorization VRA the most recent polarization. During of increased a trend recognized Southern polarization in jurisdic- testimony about increasing heard Congress proceedings, polarized voting in the State. He testified that African-American and white voters became 25 polarized voting in the State. He testified and further noted elections between the 2000 and 2012 presidential polarized more percent of African-American votes while only receiving 11 percent of white votes. 11 percent receiving of African-American votes while only Sekou Franklin, Ph.D., Professor of Political Science at Middle Tennessee State University, testified about racially State University, of Political Science at Middle Tennessee Sekou Franklin, Ph.D., Professor Similarly, David Bositis of the Joint Center for Political and Economic Studies stated that David Bositis of the Joint Center for Political and Similarly, Sekou Franklin of Middle Tennessee State University testified about increasing racially State University testified about increasing Sekou Franklin of Middle Tennessee Other Expert Findings of Increasing Racial Polarization in Voting in Polarization Racial of Increasing Findings Other Expert tions. The House Report documenting those proceedings notes that “Testimony presented presented notes that “Testimony documenting those proceedings tions. The House Report that in the 2007 Nashville mayoral race, the African-American candidate r that in the 2007 Nashville mayoral race, in a State or Region in At the National Commission for Voting Rights hearing held in Nashville, Tennessee, Professor Professor Tennessee, Rights hearing held in Nashville, At the National Commission for Voting The phenomenon of racially polarized voting not only continues to exist; many experts have to exist; many experts have of racially polarized voting not only continues The phenomenon

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35 ns that the court eports on the

36

34

33

32 lation] will significantly hinder black voters’ electoral opportunities in these districts.” lation] will significantly hinder black voters’ electoral opportunities in these South Carolina as it affected the State’s covered counties.DOJ found that Hispanic voters support Hispanic covered as it affected the State’s noted that “in… interracial contests, black voters overwhelmingly supported the black can noted that “in… interracial contests, didate and white cross-over was minimal.” DOJ concluded: “In light of the pattern of racially didate and white cross-over State, Act No. 96 [the redistricting in elections in the polarized voting that appears to prevail to elect a candidate of opportunity for black voters no realistic plan] would appear to provide redistricting plan in a formerly covered jurisdiction, including the following: jurisdiction, covered plan in a formerly redistricting be retrogressive. presence of racially polarized voting, there have been numerous DOJ objections that note been numerous have voting, there of racially polarized presence In 2002, DOJ objected to a redistricting plan for the State House of Representatives insofar plan for the State House of Representatives In 2002, DOJ objected to a redistricting In addition to federal court findings of racially polarized voting and expert r court findings of racially polarized In addition to federal In 2001, DOJ objected to the proposed State House redistricting plan. The objection letter State House redistricting In 2001, DOJ objected to the proposed candidates but Anglo voters do not. DOJ objected. According to the objection letter, there were clear findings of racially polarized were there to the objection letter, DOJ objected. According DOJ objected to a 1996 congressional redistricting plan in Louisiana. The objection letter redistricting DOJ objected to a 1996 congressional DOJ objected to the 2001 legislative redistricting plan. In the objection letter, DOJ noted that DOJ noted that plan. In the objection letter, redistricting DOJ objected to the 2001 legislative found to exist, see Smith, 946 F. Supp. at 1202, these reductions [in black voting age popu- Supp. at 1202, these reductions found to exist, see Smith, 946 F. found racially polarized voting in those elections. South Carolina submitted a State Senate redistricting plan in 1997 for preclearance, and the plan in 1997 for preclearance, submitted a State Senate redistricting South Carolina their choice outside the New Orleans area.” their choice outside the New Orleans the presence of racially polarized voting as a reason for denying preclearance for a statewide for denying preclearance voting as a reason of racially polarized the presence voting. The letter noted, “In the context of the racially polarized voting patter Texas Arizona provided insufficient evidence to show that voting was not racially polarized. As such, insufficient evidence to show that voting was not racially polarized. Arizona provided districts would not in the number of majority-minority that a decrease Arizona failed to prove Florida Louisiana DOJ Findings of Racially Polarized Voting in Statewide in Voting Polarized of Racially DOJ Findings Redistricting Plans Redistricting Arizona edistricting plans that

41 - academ several prominent 37 Moreover, the six states with the lowest percentage of whites voting of whites voting the six states with the lowest percentage Moreover, The five states where Obama received the lowest levels of white support Obama The five states where 38 39 The county-level regression analysis showed similar results: Obama received Obama received analysis showed similar results: The county-level regression

40 42 larly in the states that were covered by Section 5. Given this persistent trend, minorities are minorities are by Section 5. Given this persistent trend, covered larly in the states that were likely to continue finding themselves subject to election schemes and r limit their ability to fully participate in the electoral process. ics authored an amicus brief that included, among other things, an analysis comparing the included, among other things, an analysis an amicus brief that ics authored of white to an exit poll, 26 percent 2008 general election. According jurisdictions in the and Texas. are among the six states where African Americans make up the greatest percentage of the percentage African Americans make up the greatest among the six states where are has testified on behalf of the federal government,has testified on behalf of the federal state, and local governments, and private have demonstrated that voting remains polarized in many areas of the country, and particu- of the country, polarized in many areas have demonstrated that voting remains non-covered states. non-covered parties. Dr. Engstrom stated that based on recent analyses he had done, voting was racially voting was racially analyses he had done, stated that based on recent Engstrom parties. Dr. Florida, Alabama, North Carolina, Georgia, Louisiana, South Carolina, polarized throughout dilution claim. Federal courts, DOJ (in its administrative review function), and several analysts its administrative review dilution claim. Federal courts, DOJ (in degree of support Barack Obama received from white voters in covered and non-covered and non-covered in covered white voters from received of support Barack Obama degree population. Northwest Austin Municipal Utility District No. One v. Holder, Utility District No. One v. In Northwest Austin Municipal compared to 46 percent of white voters in non-covered counties. of white voters in non-covered to 46 percent compared for Obama were fully covered by Section 5 at the time: Alabama (10 percent), Mississippi by Section 5 at the time: Alabama (10 percent), fully covered for Obama were from Dr. Richard Engstrom, a noted expert on the issue of racially polarized voting, who who a noted expert on the issue of racially polarized voting, Engstrom, Richard Dr. from Similarly, in 2005, the National Commission on the Voting Rights Act received testimony testimony Rights Act received in 2005, the National Commission on the Voting Similarly, (11 percent), Louisiana (14 percent), Georgia (23 percent), South Carolina (26 percent), and (26 percent), South Carolina Georgia (23 percent), Louisiana (14 percent), (11 percent), Greater Racially Polarized Voting in the Formerly Covered the Formerly in Voting Polarized Racially Greater the estimated support of 24 percent of white voters in counties formerly covered by Section 5 formerly covered of white voters in counties the estimated support of 24 percent voters supported Barack Obama in covered states compared to 48 percent white voters in to 48 percent states compared Obama in covered voters supported Barack Jurisdictions than in Non-Covered Jurisdictions than in Jurisdictions Texas (26 percent). Texas The presence of racially polarized voting is the “evidentiary linchpin” of a successful vote of racially polarized voting is the The presence

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NATIONAL COMMISSION ON VOTING RIGHTS 110 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 111

44

46 emains one of ement in the context of equir

43 Even if the polarization is “less than absolute,” at-large and multi-member systems 45 economic, or political group, may be unable to elect any may in an representatives or political group, economic, strength of minority groups by permitting the political majority to elect all strength of minority groups by permitting unit is divided into single-member districts. The minority’s voting power in a The minority’s districts. unit is divided into single-member diluted when bloc voting occurs and ballots multimember district is particularly representatives of the district. A distinct minority, whether it be a racial, ethnic, ethnic, whether it be a racial, distinct minority, A representatives of the district. at-large election, yet may be able to elect several representatives if the political yet may be able at-large election, lines. are cast along strict majority-minority At-large voting schemes and multimember districts tend to minimize the voting At-large voting schemes and multimember that these methods of election can dilute minority voting strength and minority voting strength also racially polarized that these methods of election can dilute RELATED PRACTICES DILUTE MINORITIES’ VOTING STRENGTH PRACTICES DILUTE MINORITIES’ RELATED is a majority vote requirement and a runoff is necessary, however, the minority candidate will however, and a runoff is necessary, is a majority vote requirement at-large or multi-member elections, which requires that a candidate garner a majority—not at-large or multi-member elections, which requires elect any. not win in a racially polarized context. a violation of the Constitution or of Section 2 of the VRA. not per se a violation of the Constitution or of Section member districts are prevention of “single-shot” or “bullet” voting in at-large or multi-member elections. Single- prevention many candidates, it is possible that a minority-preferred candidate may win a plurality. If there If there candidate may win a plurality. many candidates, it is possible that a minority-preferred majority will be able to elect all of its candidates of choice and the minority will not be able tomajority will be able to elect all of its candidates III. AT-LARGE AND MULTI-MEMBER METHODS OF ELECTION AND OF ELECTION METHODS AND MULTI-MEMBER AT-LARGE III. seats on a governmental body for that jurisdiction; if there are five seats on the county council, five seats on are seats on a governmental for that jurisdiction; if there body shot voting is only possible in contests where multiple seats are open and top vote-getters fill multiple seats are shot voting is only possible in contests where simply a plurality—of the votes in order to win. If the white majority splits its votes among simply a plurality—of the votes in order In an at-large or multi-member district system, all voters in the jurisdiction vote for all of theIn an at-large or multi-member district can still severely inhibit the ability of minorities to elect their candidates of choice. can still severely Rather, it is only when at-large elections and multi-member districts are used and voting is districts are it is only when at-large elections and multi-member Rather, forms over the years. The use of at-large elections and multi-member districts r The use of at-large elections and forms over the years. for instance, each voter is able to cast a vote for all five seats. At-large elections and multi- for instance, each voter is able to cast the common vote dilution schemes. The Supreme Court has explained that dilution schemes. The Supreme the common vote the available seats. When a voter “single-shoots” he has the opportunity to vote for multiple the available seats. When a voter “single-shoots” he has the opportunity voting is racially polarized. One such practice is a majority vote r violate Section 2. When voting is racially polarized in at-large and multi-member systems, theviolate Section 2. When voting is racially As was detailed at the beginning of this Report, vote dilution schemes have taken many the beginning of this Report, vote dilution As was detailed at Another practice that can dilute minority voting strength if voting is racially polarized is the if voting Another practice that can dilute minority voting strength Introduction There are several other election practices that can dilute minority votes when used where several other election practices that can dilute minority votes when used where are There - ed

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51 Single-shot voting has often led to the election of Single-shot voting 47 - districts pre place systems, residency Much like numbered 49 location and size of minority populations. What follows are several examples that provide an several examples that provide What follows are location and size of minority populations. against all of the candidates. and that a minority candidate will be able to win with a plurality of votes. In a racially polarized and that a minority candidate will be a minority-preferred candidate where voting is racially polarized, though it does require that though it does require voting is racially polarized, candidate where a minority-preferred place system, wherein each candidate must run for a specific place (1, 2, 3, etc.) rather than each candidate must run for a specific place (1, 2, 3, etc.) rather place system, wherein plaintiffs have been successful (excluding cases regarding bilingual requirements), the vast requirements), bilingual regarding cases plaintiffs have been successful (excluding in 21 brought These cases were to methods of election. majority—over 70 percent—related in whole by Section 5. Most of states, including six of the states formerly covered different had 78. but Georgia had six, Mississippi had seven, and Texas a under Section 5 of the VRA by the Attorney General. These denials represent preclearance of successful Section 2 cases that of Section 5 denials than the percent much smaller share is illustrative of the different in these percentages election methods. The difference to relate states, though out among jurisdictions in nine different spread denials were preclearance district. Both numbered place systems and residency districts also tend to reduce the num- districts also tend to reduce place systems and residency district. Both numbered makes it less likely that majority support will be divided ber of candidates in a contest, which divided among a number of candidates.” divided among a number minority voters forgo their say over the other candidates for the office in question. their say over the other candidates minority voters forgo setting, any of these devices may prevent election of a minority-preferred candidate. election of a minority-preferred setting, any of these devices may prevent In the same time period, 20 voting changes related to methods of election were denied to methods of election were In the same time period, 20 voting changes related concentrates its vote behind a limited number of candidates and if the vote of the majority is and if the vote of the majority behind a limited number of candidates concentrates its vote - for his pre to concentrate support in order cast only one vote but chooses to candidates overview of the types of vote dilution cases from the very recent past. recent the very cases from overview of the types of vote dilution Many current attempts to dilute the voting power of minorities are reactions to changes in the to changes reactions to dilute the voting power of minorities are attempts Many current ferred candidate. “Single-shot voting enables a minority group to win some at-large seats if it to win some at-large seats voting enables a minority group candidate. “Single-shot ferred One anti-single-shot device is the “full-slate rule,” wherein voters are required to cast all of required voters are device is the “full-slate rule,” wherein One anti-single-shot Of the cases brought between 1995 and June 2014 under Section 2 of the VRA in which between 1995 and June 2014 under Section 2 of the VRA in which Of the cases brought Overview of successful Section 2 challenges and Section 5 objections to at- Overview of successful Section large and multi-member methods of election, 1995 to present large and multi-member methods their available votes for an office (or their ballots will be invalidated). A second is a number for an office (or their ballots will their available votes these 21 states had between one and three successful cases related to methods of election, successful cases related these 21 states had between one and three The 20 most effectively. able to address that Section 2 and Section 5 are types of problems in and five denials for jurisdictions four denials for jurisdictions in South Carolina were there tain district, even though voters from all districts will choose among the candidates for that all districts will choose tain district, even though voters from vent single-shot voting by restricting candidacy for a position to individuals who live in a cer candidacy for a position to individuals who live in a vent single-shot voting by restricting Texas. There was only one preclearance denial for a state-level method of election: in 2010, denial for a state-level method of election: preclearance was only one There Texas.

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NATIONAL COMMISSION ON VOTING RIGHTS 112 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 113 - - e of popu by 1990 they 54

58 61 No Native American was s method of electing its 57 The consent decree provided provided The consent decree

60 52 The district court entered a consent decree a consent decree The district court entered 59 , North Dakota In 1992, the county changed its method of electing the In 1992, the county changed its method 56 Between the 1980 census and the 1990 census, the Native American Between the 1980 census and the 1990 53 As of the 1990 census, two of the districts for the County Commission As of the 1990 census, two of the districts 55 The total population of Osceola County had increased dramatically over the The total population of Osceola County had increased 62 its five County Commissioners violated Section 2 of the VRA. Prior to 1992, the members of its five County Commissioners violated lation increased, violated Section 2 of the VRA. lation increased, at-large elections where the minority group’s votes would be diluted. In each of the following votes would be diluted. In each of the the minority group’s at-large elections where age population. examples, a Section 2 challenge resulted in the restoration of single-member districts several of single-member in the restoration examples, a Section 2 challenge resulted elected to the County Commission under the at-large method of election. elected to the County Commission under member districts. had grown to be 38.3 percent of the County’s total population and 29.3 percent of the voting total population and 29.3 percent of the County’s to be 38.3 percent had grown population in Benson County grew as a share of the County’s total population. In 1980, of the County’s as a share population in Benson County grew majority-Native American districts if they could be constitutionally drawn. previous decades, and the percentage of the population that is Hispanic had also increased of the population that is Hispanic had also increased decades, and the percentage previous method of electing county commissioners, adopted after the Native American shar method of electing county commissioners, adopted after the Native American In March 2000, the United States and Benson County, North Dakota ended litigation by en- County, 2000, the United States and Benson In March In certain areas of the country, the minority population has markedly increased its share of share its increased the minority population has markedly of the country, In certain areas In 2006, a U.S. district court in Florida held that Osceola County’ In March 2000, the United States filed suit against Benson County, alleging that the at-large 2000, the United States filed suit against Benson County, In March certain county boards of trustees and boards of education. and boards of trustees certain county boards Native Americans constituted 29.2 percent of the County’s total population; of the County’s Native Americans constituted 29.2 percent four days later in which Benson County admitted that the at-large method of elections for four days later in which Benson County admitted that the at-large method County Commissioners from single-member districts to at-large. County Commissioners from the Benson County, North Dakota Board of Commissioners had been elected from single- from of Commissioners had been elected Dakota Board North the Benson County, tering into a consent decree in which the County admitted that its at-large method of electing in which the County admitted that its at-large method of electing tering into a consent decree the County’s Commissioners violated Section 2 of the VRA. the County’s Changing to At-Large Elections as Minority Groups Grow as Minority Elections to At-Large Changing the Attorney General denied preclearance to Mississippi for a majority vote requirement for a majority vote requirement to Mississippi for the Attorney preclearance General denied that Benson County would devise a new single-member district voting plan including two that Benson County would devise a new single-member district voting plan the overall population over the last several decades. In some places, as the minority popula over the last several decades. In the overall population tion grew, jurisdictions changed their method of election from single-member districts— single-member of election from jurisdictions changed their method tion grew, able to elect a candidate of choice—to may have been group which the minority through were majority Native American. were 2 of the VRA. years after a jurisdiction changed to at-large elections. years after a jurisdiction changed to five-member County Commission caused a dilution of Hispanic votes in violation of Section five-member County Commission caused a dilution of Hispanic votes in United States v. Benson County United States v. Osceola County, Florida , - . Less ned away Members of e tur 66 eated in a hostile Additionally, the Additionally, 63 endum for a return to endum for a return efer cent of voters in favor A public referendum to change to A public referendum 64

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precondition the first Gingles precondition After a trial, the district court found that 70 68 A Hispanic candidate was elected from a single-member district in the a single-member A Hispanic candidate was elected from 65 level, but Latino candidates had not been successful in getting elected. In 1991, the Osceola getting elected. In 1991, the Osceola had not been successful in level, but Latino candidates including discrimination at the polls in the 2000 election when Hispanics “wer including discrimination at the polls in the 2000 election when Hispanics at-large elections. asked for multiple forms of identification (unlike non-Hispanic voters), and tr asked for multiple forms of identification (unlike non-Hispanic voters), and employed a single-member plan); the socioeconomic disparities between Hispanics and employed a single-member plan); the socioeconomic disparities between election system from at-large to single-member districts. at-large to single-member election system from history of a lack of success by Hispanic candidates at the polls (other than when the County history of a lack of success by Hispanic in the County non-Hispanics in the County; and a history of discrimination against Hispanics unsuccessfully for County Commission. percent in 2000 to almost 31 percent in 2006. As the Hispanic population grew, leaders in As the Hispanic population grew, in 2006. percent in 2000 to almost 31 percent requirement of a runoff in primary elections and Commissioners’ residency districts—fur of a runoff in primary elections and Commissioners’ requirement method diluted the voting strength of Hispanics in violation of Section 2. In its analysis of the of Hispanics in violation method diluted the voting strength minority candidates). dramatically. In 1980, Hispanics represented only two percent of the County’s population; by population; of the County’s only two percent Hispanics represented In 1980, dramatically. manner by poll workers.” single-member districts passed in the 1992 election, with 57 per passed in the 1992 election, with single-member districts In 2005, the United States sued Osceola County alleging that the at-large method of electing In 2005, the United States sued Osceola conducted under a single-member district system, but included a r conducted under a single-member district county were politically cohesive and that white voters generally voted in a bloc to defeat politically cohesive and that white county were Hispanic population, as a portion of all registered voters in the County, grew from about 20 from grew voters in the County, as a portion of all registered Hispanic population, Hispanic candidates. County Hispanic American Association requested that the County Commission change the that the County Commission Association requested County Hispanic American Commission was not responsive to their requests. Hispanic candidates also continued to run Hispanic candidates to their requests. Commission was not responsive the Latino community began to express an interest in political representation at the county at political representation in an interest began to express the Latino community than two weeks later, efforts began to returnThe 1996 election was the system to at-large. began to efforts than two weeks later, ther enhanced opportunities for discrimination and contributed to the lack of success of ther enhanced opportunities for discrimination and contributed to the lack totality of the circumstances, the court relied on the extent of racially polarized voting; the on the extent of racially the court relied totality of the circumstances, the County Commissioners violated Section 2 of the VRA. The defendants did not dispute the County Commissioners violated (i.e., that Hispanics in the satisfied were Gingles preconditions that the second and third the Hispanic community continued to advocate for single-member districts, but the County the Hispanic community continued to was also satisfied, and that, under the totality of the circumstances, the County’s at-large the County’s totality of the circumstances, was also satisfied, and that, under the without being allowed to vote, refused assistance, forbidden to use their own interpreters, assistance, forbidden to use their own interpreters, without being allowed to vote, refused 2000, Hispanics made up almost 30 percent of the County’s population. of the County’s up almost 30 percent 2000, Hispanics made The court also noted that several of Osceola County’s election practices—including the The court also noted that several of Osceola County’s 1996 election, but the referendum to return to at-large elections also passed. to at-large elections also to return 1996 election, but the referendum

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5

NATIONAL COMMISSION ON VOTING RIGHTS 114 Jeff Wice, Fellow at the Jaeckle Center at the SUNY Buffalo Law School; Susan Lerner, Executive Director of Common Cause New York; Aunna Dennis, National Coordinator for the Legal Mobilization Project at the Lawyers’ Committee for Civil Rights Under Law; DeNora Getachew, Campaign Manager and Legislative Counsel at the Brennan Center for Justice; and Dan Kolb, Co-Chair of the New York State Bar Association’s Special Committee on Voter Participation and Lawyers’ Committee board member, answered questions at the NCVR New York City regional hearing. PHOTO CREDIT: CHRIS FIELDS

Refusal to Change to Single-Member Districts as a Minority Population Increases

In some areas of the country where the minority population has grown as a share of the total population, minority groups have advocated for a change from an at-large system in order to increase the chances of electing a candidate of choice. Jurisdictions have staunchly refused to change to a more racially-fair alternative and have needed to be compelled by court order to do so.

United States v. Village of Port Chester, New York In January 2008, a U.S. district court found that the at-large method of election for the six- member Board of Trustees of the Village of Port Chester, New York violated Section 2 of the VRA by impermissibly diluting the voting strength of Latinos.71 From 1990 to 2000, the Latino population of Port Chester had grown 73 percent, and, as of the 2000 census, Latinos constituted 46.2 percent of the village’s population, while 42.8 percent of the population was white and 6.6 percent was non-Hispanic black.72 The citizen voting age population was 65.5 percent white, 21.9 percent Hispanic, and 8.9 percent non-Hispanic black.73 Despite the increase in and substantial size of the Latino population of Port Chester, no Latino had ever been elected to the Board of Trustees (or, as of the time of the trial in the case, to any elected office in Port Chester).74

75

82 By the time 79 From 1980 to 1980 From 77 - Blaine County pro 81 In 1999, the United States sued Blaine County, In 1999, the United States sued Blaine County, 80

76 as of the 1990 census, that number had increased to 39.6 percent. as of the 1990 census, that number had increased 78 a tenuous justification for [the] at-large voting system. While Blaine County While at-large voting system. a tenuous justification for [the] to the record was clear their voting system, argued that none of this existed in William ‘Snuffy’ Main at the NCVR Rapid City regional hearing ‘Snuffy’ Main at the William American Indians, depressed socioeconomic conditions for American Indians, American Indians, conditions for depressed socioeconomic American Indians, voting procedures that enhanced the opportunities for discrimination against voting procedures that enhanced the contrary.” the contrary.” “Official discrimination against American Indians, racially polarized voting, racially polarized voting, American Indians, “Official discrimination against in Port Chester, including a flyer stating, “The Hispanics are running the show already.” running Hispanics are including a flyer stating, “The in Port Chester, ing its three-member County Commission violated Section 2 of the VRA. ing its three-member alleging that the at-large voting system for electing County Commissioners violated Section alleging that the at-large voting system for electing County Commissioners assistance at the polls; the nominating process for getting on the ballot, which favored those favored for getting on the ballot, which the nominating process assistance at the polls; population concentrated on the Fort Belknap Reservation), yet no Native American had ever population concentrated on the Fort Belknap Reservation), yet no Native been elected to the County Commission. rate treatment of Spanish-speaking voters and failure to provide sufficient Spanish language sufficient to provide voters and failure of Spanish-speaking rate treatment posed a remedial plan with three single-member districts, which the district court approved. the district court approved. single-member districts, which plan with three posed a remedial dramatically. In 1980, Native Americans made up 31.7 percent of the population of Blaine In 1980, Native Americans made up 31.7 percent dramatically. bers to several candidates—as a remedy, and the court accepted a plan of at-large elections and the court accepted a plan of at-large bers to several candidates—as a remedy, In 2002, a U.S. district court found that Blaine County, Montana’s at-large system for elect- Montana’s Blaine County, In 2002, a U.S. district court found that of income and formal education for Latinos in Port Chester; and racial appeals in campaigns and racial appeals in campaigns education for Latinos in Port Chester; of income and formal In finding a violation of Section 2, the court’s discussion included the history of official dis- included the history discussion 2, the court’s a violation of Section In finding In 2002, a tribal member, Delores Plumage, was elected to the County Commission. Delores In 2002, a tribal member, of the 2000 census, Native Americans comprised 45.2 percent of the total population and of the 2000 census, Native Americans comprised 45.2 percent crimination in Port Chester Village and Westchester County against Latinos, including dispa- County against Latinos, Chester Villagecrimination in Port and Westchester 38.8 percent of the voting age population of Blaine County (with 80 percent of the Native of the voting age population of Blaine County (with 80 percent 38.8 percent County; that there was a history of official discrimination against Native Americans, racially polarized that there with political ties or institutional support, which most Latinos lacked; the lower average levels lacked; the lower average levels institutional support, which most Latinos with political ties or ted as many votes as there are candidates and may give all to one candidate or varying num- are ted as many votes as there the Board of Trustees. the Board with cumulative voting. In 2010 the Village Chester elected its first Latino member of of Port 2 of the VRA. In concluding that the at-large system violated Section 2, the court found 2 of the VRA. In concluding that the at-large system violated Section 2, the 2000, the share of the population of Blaine County that was Native American had increased of the population of Blaine County that was Native American had increased 2000, the share voting, voting procedures that enhanced the opportunities for discrimination against Native that enhanced the opportunities for voting, voting procedures Americans, and a tenuous justification for the at-large voting system. United States v. Blaine County, Montana United States v. Blaine County, The Village of Port Chester proposed cumulative voting—a system where every voter is allot- cumulative voting—a system where The Village Chester proposed of Port

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NATIONAL COMMISSION ON VOTING RIGHTS 116 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 117 85 Yet Yet 89 As of 88 African-American 84 ease in the minority Fremont County is home to the Wind Fremont River 87 The nine-member City Council was elected as follows: four mem- City Council was elected as follows: The nine-member 83 Since then, a second African American has been elected to the Euclid Since then, a second African American 86 large Council President position. After implementation of the plan, an African American was position. After implementation of the plan, an African American large Council President judgment, there are several examples of this entrenched opposition, including the following. opposition, including the several examples of this entrenched are judgment, there agreed that Euclid’s method of electing its City Council violated Section 2 based on racially method of electing that Euclid’s agreed by to the needs of the African-American community and a persistent lack of responsiveness election of County Commissioners violated Section 2 of the VRA by impermissibly diluting election of County Commissioners violated Section 2 of the VRA by impermissibly elected officials. districts established by one of the majority-minority elected to the Euclid City Council from return to an at-large system after having changed to a single-member system, to refusing to to refusing return to an at-large system after having changed to a single-member system, decreased. As of the 2000 census, Euclid’s African-American voting age population was African-American census, Euclid’s As of the 2000 decreased. bers were elected from single-member districts, four were elected at-large from numbered numbered at-large from elected four were single-member districts, elected from bers were of the council. elected at-large to serve as president posts, and one was resulted in the dilution of African-American voting strength in violation of Section 2. The court strength in the dilution of African-American voting resulted including housing and education, in several areas polarized voting, a history of discrimination prior to the filing of Large, no Native American had ever been elected to the five-seat County settle cases where the Section 2 violation is so clear that it had been decided on summary settle cases where In Wyoming, a U.S. district court found in 2010 that Fremont County’s at-large system for the County’s In Wyoming, a U.S. district court found in 2010 that Fremont Indian Reservation, which includes Eastern and Northern Shoshone Arapaho Tribes. In response, the city divided Euclid into eight single-member districts, while retaining the at- single-member districts, while retaining the city divided Euclid into eight In response, In 2008, the United States filed a suit alleging that Euclid’s method of electing its City Council alleging that Euclid’s In 2008, the United States filed a suit - opposition to minority representa of the population, demonstrate entrenched share group’s candidates had run for city council ten times since 1981, but lost each time. No African- candidates had run for city council ten Until the late 1970s, the city of Euclid was a predominantly white suburb of Cleveland. In the white suburb of the city of Euclid was a predominantly Until the late 1970s, Other cases of minority vote dilution, whether or not they follow an incr City Council. the 2000 census, the population of the County was about 20 percent Native American. the 2000 census, the population of the County was about 20 percent the voting strength of Native American voters. the voting strength tion. From refusing to submit a single-member plan as ordered by a court, to attempting to to submit a single-member plan as ordered refusing tion. From the remedial plan. the remedial 27.8 percent of the total population, yet none of Euclid’s four wards had a majority of African had four wards yet none of Euclid’s of the total population, 27.8 percent Americans of voting age. Americans of voting American had ever been elected to the City Council, School Board or as Mayor of Euclid. City Council, School Board American had ever been elected to the Large v. Fremont County, Wyoming United States v. City of Euclid v. City of United States Entrenched Opposition to Minority Representation to Minority Entrenched Opposition The African-American population grew in the 1980s and 1990s, while the white population in the 1980s and 1990s, while the white population grew The African-American 1970s, African Americans represented only half of one percent of the city’s total population. total population. of the city’s of one percent only half represented 1970s, African Americans The 97 .” emaining Essentially, Essentially, 96 emont County emont County , guaranteeing dered the County to dered Despite this order, Despite this order, 94 ength of the minority emain[ed] palpable[,]” and the emain[ed] palpable[,]”

was filed (but before the case After Large was filed (but before 92 The plaintiffs, members of the Ute Mountain 99 The evidence of ongoing discrimination included the use of racial slurs discrimination included the use The evidence of ongoing Candidates from the majority-Native American district would be required the majority-Native American district would be required Candidates from 90

95 93 98 Additionally, when Native Americans had run for office in Fremont County, the County, Fremont for office in when Native Americans had run Additionally, 91 Gary Collins, Northern Arapaho Tribal Liaison, at the NCVR Rapid City regional hearing Liaison, at the NCVR Rapid City regional Gary Collins, Northern Arapaho Tribal the county… [and] our population is growing.” is growing.” the county… [and] our population “The issue is, we weren’t being represented and our population is 20 percent of we weren’t being represented “The issue is, after whites had been served; disparate treatment in the criminal justice system; and even in the criminal justice system; and served; disparate treatment after whites had been the [expletive] he was in office) that, “I hate Commissioner (before a comment by a County against Native Americans, including signs on stores that said “No Dogs or Indians Allowed”; that said “No Dogs or Indians including signs on stores against Native Americans, not to vote for one Native American candidate because if elected he “was going to give [a not to vote for one Native American hybrid plan consisted of two districts: one single-seat majority-Native American district, with hybrid plan consisted of two districts: racially, motivated.” racially, paign, she voiced support for at-large elections, which is a position that the white majority paign, she voiced support for at-large date was “an enrolled member and that he would be voting on water issues,” and a warning date was “an enrolled propose a plan to elect Commissioners by district rather than at-large. a plan to elect Commissioners by district propose members of the white majority would be allowed to vote for four commissioners while Native members of the white majority would be allowed to vote for four commissioners rest of the county. of the rest district court rejected the county’s proposed plan and ordered a single-member district plan and ordered plan proposed the county’s district court rejected be implemented. seats would be elected by the remaining population using an at-large scheme. seats would be elected by the remaining strength in violation of Section 2 of the VRA. strength In 1998, a district court in Colorado found that the at-large elections of the six-member In 1998, a district court in Colorado found that the at-large elections of the court rejected “any attempt to characterize this discrimination as being politically, rather than being politically, to characterize this discrimination as “any attempt court rejected Indians.” concluded), one Native American was elected to the County Commission. During her cam- concluded), one Native American was campaigns against them included racial appeals such as ads reminding voters that a candi- appeals such as ads reminding campaigns against them included racial Native Americans being followed around in stores, ignored by sales people, or served only by sales ignored in stores, being followed around Native Americans Board of Education for the Montezuma-Cortez School District diluted Native American voting of Board Ute Tribe and Southern Ute Tribe, had originally brought suit in 1989 challenging the at-large had originally brought and Southern Ute Tribe, Ute Tribe Commission. The district court found that discrimination against Indians in Fr against found that discrimination The district court Commission. to live in the district and would be elected only by voters in that district; the four r to live in the district and would be elected only by voters in that district; the town in Fremont County] back to the Indians.” town in Fremont that the non-Indian majority continues to cancel out the voting str the County proposed another plan that negated the voting power of Native Americans. This another plan that negated the voting power of Native Americans. the County proposed was “ongoing, and that the effects of historical discrimination r that the effects of historical discrimination was “ongoing, and would likely favor. Cuthair v. Montezuma-Cortez School District After finding that the at-large plan violated Section 2, the district court or After finding that the at-large plan violated Americans would be allowed to vote for only one. The district court found that the plan Americans would be allowed to vote for only one. The district court found 19.2 percent of the county’s population, and one four-seat majority white district covering the population, and one four-seat of the county’s 19.2 percent “perpetuat[ed] the separation, isolation, and racial polarization in the County

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NATIONAL COMMISSION ON VOTING RIGHTS 118 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 119 - ed - - , which emain- nment” suffer eviewed an exten d elections; the r Five African-American Five African-American 105 By the time of the 2010 census, African By the time of the 2010 census, African 104 When no Native American was elected to District D in 1991 or was elected to District D in When no Native American The court made this finding on a motion for summary judg 101 103 The court also found that voting in the county was racially polar The court also found that voting in the 102 In 1990, the district court entered a consent decree establishing a majority Native a majority Native establishing a consent decree district court entered In 1990, the 100 a refusal to change methods of election when a minority population increases and and when a minority population increases to change methods of election both a refusal includes government seizure of Ute land, a massacre of Indians in eastern Colorado, and of Ute land, a massacre includes government seizure ing plans for future elections. ing plans for future ized, that the historical use of at-large elections presented the opportunity for discrimination elections presented ized, that the historical use of at-large ing five positions on the School Board were still elected at-large. The consent decree also elected at-large. The consent decree still were on the School Board ing five positions endorsed Native American candidate (or candidate that if no provision included the unusual against minority groups in Colorado and the County, that Native Americans in the County in Colorado and the County, against minority groups a year in which they could request that the court allow them to restore at-large elections for that the court allow them to restore could request a year in which they positions. all school board and Board of Education diluted the voting strength of African-American voters in violation African-American voters in violation of of Education diluted the voting strength and Board entrenched opposition to minority representation. opposition to minority representation. entrenched undisputed. Indeed, some of the Board of Education defendants had already conceded conceded of Education defendants had already undisputed. Indeed, some of the Board held that the at-large elections violated Section 2 of the VRA. The court r held that the at-large elections violated ment—meaning there was not even a trial because the court found that the key facts were was not even a trial because the court found that the key facts were ment—meaning there decades of official policies of coercive assimilation, led to dire social and economic situations social assimilation, led to dire decades of official policies of coercive by Native Americans in the United States and specifically in Colorado. That history by Native Americans in the United States bore the effects of discrimination, and that no Native American had been elected to a non- the effects of discrimination, and that no bore by the Tribal Council) was elected for District D in 1991 or 1993, the defendants would have D in 1991 or 1993, the defendants Council) was elected for District by the Tribal method. mericans comprised doubled between 2000 and 2010. As of the 2000 census, African Americans comprised cted to the five-member population, yet no African-American candidate had ever been elected to the five-member sive history of “pervasive discrimination and abuse at the hands of the gover sive history of “pervasive discrimination In 2013, the U.S. District Court for the NorthernIn 2013, the U.S. District Court for the District of Georgia found that Fayette candidates had run for the Board of Education and seven had unsuccessfully run for the of Education and seven had unsuccessfully run for the candidates had run for the Board of Section 2 of the VRA. Board of Commissioners. of Board Board of Commissioners or five-member Board of Education. Commissioners or five-member Board of Board for Native Americans. County, Georgia’s at-large method of electing members of the Board of Commissioners of Commissioners at-large method of electing members of the Board Georgia’s County, his case is an example of that the at-large election of its members violated Section 2. This case is an example of tribal office in the County. The district court ordered the parties to submit appropriate district- parties to submit appropriate the ordered The district court tribal office in the County. Georgia State Conference of the NAACP v. Fayette County, Georgia Georgia State Conference of the A different district court judge determined that the consent decree was unenforceable, and was unenforceable, the consent decree district court judge determined that A different Americans comprised 20.1 percent of the population and 19.5 percent of the voting age of the voting age of the population and 19.5 percent Americans comprised 20.1 percent American district (“District D”) for the 1991 and 1993 school boar D”) for the 1991 and 1993 school American district (“District The percentage of the population of Fayette County that is African-American had almost of the population of Fayette County that is African-American had almost The percentage 1993, the defendants sought permission to resume at-large elections. sought permission to resume 1993, the defendants 11.5 percent of the County’s population. of the County’s 11.5 percent

109 The court found that the first The court found that the first 108 preconditions.

107 No African American had ever been elected to either the Board elected to either the Board No African American had ever been 106 Stated Rep. Virgil Fludd at the NCVR Georgia hearing. Stated Rep. Virgil Although, Black voters are politically cohesive, bloc voting by other members of bloc voting by cohesive, Black voters are politically Although, the electorate consistently defeats black-preferred candidates.” defeats black-preferred the electorate consistently “Elections in Fayette County show a clear pattern of racially polarized voting. pattern of racially polarized voting. County show a clear “Elections in Fayette even dispute the second and third Gingles even dispute the second and third County had a majority-vote voting. Second, the County had a majority-vote eliminating the opportunity for single-shot elected to a county-wide office. requirement, which can also dilute the voting strength of minority voters. of minority which can also dilute the voting strength requirement, precondition was satisfied and that the totality of the circumstances demonstrated vote demonstrated vote of the circumstances was satisfied and that the totality precondition of racial discrimination and racially polarized voting, dilution. In addition to finding a history Fayette County did not for summary judgment, Fayette County did not In arguing against the plaintiffs’ motion gered four-year terms and had to reside in the district from which they were elected, though elected, though which they were in the district from terms and had to reside four-year gered of Commissioners or Board of Education, and only one African American had ever been of Education, and only one African American had ever been of Commissioners or Board the elections were at-large. the elections were the court also noted that election practices enhanced opportunities for discrimination. First, enhanced opportunities for discrimination. First, the court also noted that election practices posts, five individual contests and used numbered the County split its Commissioners into The members of the County’s Board of Commissioners and Board of Education served stag- of Education Board of Commissioners and Board County’s The members of the

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NATIONAL COMMISSION ON VOTING RIGHTS 120 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 121 ee There was also evi- was There 115 The court found that the 112

114 Only one of the nine members of the County Council was African- members of the County Council was Only one of the nine 110

116 In July 2002, the court granted summary judgment to the plaintiffs on the thr In July 2002, the court granted summary Additionally, the residency districts, staggering of terms, and primary nominat- districts, the residency Additionally, 111 113 large, and was the only county in South Carolina to do so where whites were a majority of the of majority a were whites where so do to Carolina South in county only the was and large, ing system meant that there was essentially a majority vote requirement, as all contests as all contests was essentially a majority vote requirement, ing system meant that there exert influence through single-shot voting. exert influence through below the poverty level, compared with 7.9 percent of whites. with 7.9 percent below the poverty level, compared preconditions had been met were undisputed. The trial that followed thus focused on the undisputed. The trial that followed had been met were preconditions population. depressed socioeconomic status of African Americans was “a direct legacy of Charleston legacy of was “a direct socioeconomic status of African Americans depressed dence that the right of African-American voters to receive assistance had been violated, with assistance dence that the right of African-American voters to receive strength in violation of Section 2 of the VRA. As of the 2000 census, African Americans 2 of the VRA. As of the 2000 census, in violation of Section strength In the court’s discussion of the totality of the circumstances in its 2003 opinion, it noted the of the totality of the circumstances discussion In the court’s In 2003, a district court found that the at-large method of election of the members of the court found that the at-large method In 2003, a district candidate had ever won a county-wide election for any of the seven single-seat offices candidate had ever won a county-wide of choice.” comprised 34.3 percent of Charleston County’s total population and 30.6 percent of its and 30.6 percent total population County’s of Charleston comprised 34.3 percent Democrat, one Republican). Such a situation also denied minority voters the opportunity to Democrat, one Republican). Such a situation also denied minority voters [C]an’t you read and write?” and “[Y]ou know how to spell your name, why can’t you just and write?” and “[Y]ou know how to spell your name, why can’t read you [C]an’t preconditions, meaning that the facts upon which the court relied to determine if the to determine the court relied meaning that the facts upon which Gingles preconditions, County’s history of official discrimination” and “makes it more difficult presently for Charleston difficult it more history of official discrimination” and “makes County’s and elect candidates political process African-American citizens to participate in the County’s Circuit Court had even issued a restraining order against the Election Commission to cease against the Election Commission order had even issued a restraining Court Circuit County Council of Charleston County, South Carolina, impermissibly diluted minority voting impermissibly South Carolina, Charleston County, County Council of (including probate judge, sheriff, and auditor); and the vast socioeconomic disparity between judge, sheriff, and auditor); and the vast socioeconomic disparity between (including probate totality of the circumstances, and the plaintiffs prevailed. and the plaintiffs prevailed. totality of the circumstances, the ongoing interference with the ability of African Americans to vote. the ongoing interference was one of only three counties in South Carolina that elected its entire County Council at- County Council that elected its entire counties in South Carolina was one of only three were either single-seat or two-seat contests with only two viable candidates per seat (one either were white poll managers asking questions such as, “Why do you need assistance?. . . white poll managers asking questions such as, “Why do you need assistance?. vote by yourself?” voting age population. Case SpotlightCase Charleston County, South Carolina African Americans and whites, with 34.2 percent of African Americans in the County living of African percent African Americans and whites, with 34.2 American, and he was not a minority-preferred candidate. At the time, Charleston County At the time, Charleston County candidate. was not a minority-preferred American, and he American voters at predominantly African-American polling places; the Charleston County American voters at predominantly The court also found “significant evidence of intimidation and harassment” of African- The court also found “significant evidence of intimidation and harassment” “egregious” racial polarization in voting in Charleston County; that only one African-American racial polarization in voting in Charleston “egregious” In 2003, while the 120 The County was ordered to pay several hundred to pay several hundred The County was ordered 119 As a result, Charleston County spent more than $2 million de- than spent more Charleston County As a result, 118 - the implementation of a discrimi thus prevented The Section 5 process 121 The County appealed the case first to the Fourth Circuit Court of Appeals and then Court of Appeals and then the case first to the Fourth Circuit The County appealed 117 in a Section 2 lawsuit. elected three African-American council members, all of whom were minority-preferred candi- minority-preferred members, all of whom were African-American council elected three nonpartisan to partisan. DOJ objected to the change on the ground that it would decrease that it would decrease to the change on the ground nonpartisan to partisan. DOJ objected natory voting change that could have taken several years and millions of dollars to invalidate natory voting change that could have by legislators from Charleston County, enacted a law changing School Board elections from elections from enacted a law changing School Board Charleston County, by legislators from noting, among other things, that it eliminated the opportunity for minority voting strength, replace the at-large system. In the first election by districts, in 2004, African-American voters In the first election by districts, in the at-large system. replace dates. single-shot voting. case regarding the County Council was on appeal, the South Carolina General Assembly, led General Assembly, South Carolina the County Council was on appeal, the case regarding Board, which was elected by a different method, was African American. which was elected by a different Board, Like the County Council, the Charleston County School Board has nine members. At the County School Board Like the County Council, the Charleston fending its discriminatory election system. fending its discriminatory Court did not hear the case. Court did not hear to the U.S. Supreme Court. The appeals court affirmed the district court, and the Supreme court, and the Supreme court affirmed the district Court. The appeals to the U.S. Supreme time of the trial regarding the County Council’s method of election, a majority of the School method of election, a majority of the the County Council’s time of the trial regarding thousand dollars in attorneys’thousand dollars in fees to the private plaintiffs. After finding a violation of Section 2, the district court ordered single-member districts to single-member districts court ordered Section 2, the district a violation of After finding This case also provides an illustration of the differences between Section 2 and Section 5. an illustration of the differences This case also provides

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ength. as discussed above. When minority voters are in When minority voters are as discussed above. 123 122 concentration or “packing” may dilute minority voting strength is not difficult to may dilute minority voting “packing” concentration or to might have sufficient numbers for example, A minority group, conceptualize. group inevitably will the So apportioned, constitute a majority in three districts. assuming the group is sufficiently cohesive. elect three candidates of its choice, electing its candidate of choice: If the majority in each district votes as a bloc electing its candidate of choice: constitute an excessive majority.” districts but on the concentration of minority voters within a district. How such of minority voters within a district. districts but on the concentration group that is large enough to constitute the majority in a single-member district group that is large enough to constitute majority, it will be assured only two candidates. As a result, we have recognized As a result, two candidates. it will be assured only majority, muster sufficient votes in any district to carry its candidate to victory. has a good chance of electing its candidate of choice, if the group is placed in if the candidate of choice, has a good chance of electing its minority of voters or from the concentration of blacks into districts where they minority of voters or from the concentration of blacks into districts against the minority candidate, the fragmented minority group will be unable to the fragmented minority group will be unable to against the minority candidate, a district where it constitutes a majority. Dividing the minority group among a district where it constitutes a majority. But if the group is packed into two districts in which it constitutes a super- But if the group is packed into two In the context of single-member districts, the usual device for diluting minority for diluting minority the usual device districts, In the context of single-member voting power is the manipulation of district lines. A politically cohesive minority A politically voting power is the manipulation of district lines. in none may prevent the group from various districts so that it is a majority that “[d]ilution of racial minority group voting strength may be caused” either minority group voting strength may be caused” “[d]ilution of racial that This case focuses not on the fragmentation of a minority group among various This case focuses not on the fragmentation “by the dispersal of blacks into districts in which they constitute an ineffective “by the dispersal of blacks into districts in which they constitute ing (or “cracking”) the minority population into different districts or packing it into a single districts or packing it into the minority population into different ing (or “cracking”) an unconstitutional form of vote dilution, an unconstitutional an overpopulated district, their votes are being diluted. The other two methods are fragment- are being diluted. The other two methods district, their votes are an overpopulated how malapportionment is used to dilute minority voting strength. how malapportionment is used to dilute minority voting strength. Voinovich v. Quilter: v. these principles in Voinovich Court described district. The Supreme IV. REDISTRICTING PLANS REDISTRICTING IV. cracking, and packing have been used to dilute minority voting str Reynolds v. Sims to be in Reynolds v. Court recognized which the Supreme malapportionment, through Malapportionment The example of a recent case in Montana involving Native American voters demonstrates The example of a recent The following discussion sets forth examples of all three and how how malapportionment, and how The following discussion sets forth examples of all three There are three ways that redistricting plans can dilute minority voting strength. The first is The first voting strength. plans can dilute minority ways that redistricting three are There - - d esult

The 134 129 Wolf Point Wolf 125 Each of the new 133 centages in the low 50s had The Wolf Point School District, located Point School District, The Wolf 124 District 45 is a majority Native American District 45 is a majority 127 Through the consent decree the School District agreed the School District agreed the consent decree Through 131 The consent decree also recognized that, with respect to District 3, that, with respect also recognized The consent decree 130 When the merger took place, Wolf Point assigned five electable trustee Point assigned five electable trustee took place, Wolf When the merger 126 The School District also agreed to create five single-member districts with five single-member districts to create The School District also agreed 132 In April of 2014 the Court approved a consent decree finding that the Wolf Point finding that the a consent decree In April of 2014 the Court approved 128 in north-eastern Montana, resides entirely in the Fort Peck Indian Reservation. in the entirely in north-eastern Montana, resides ing strength by cracking cohesive effective minority districts. by cracking cohesive effective ing strength districts would have Latino voting age populations of 51.2 and 50.6 percent, ing proposed an approximately equal number of residents and one at large position. equal number of residents an approximately electing five of the eight Board members should be 2,897, as opposed to the 4,205 found members should be 2,897, as opposed to the 4,205 found electing five of the eight Board positions to District 45 and three to District 3. to District 45 and three positions to District noted that Arizona districts with Latino voting age population per not historically permitted Latino voters “to elect a candidate of their choice.” In central and not historically permitted Latino voters “to elect a candidate of their choice.” under the existing plan. district. respectively, a significant reduction from the 65 percent found under the old District 22. DOJ the 65 percent reduction from a significant respectively, proposed District 29’s population came from the previous “District 10, which had a Hispanic previous the population came from District 29’s proposed sought to split the existing District 22 between two districts, Districts 13 and 14. The r sought to split the existing District 22 between two districts, Districts 13 single-member districts will have populations that vary no more than 1.54 percent. that vary no more single-member districts will have populations southwest Tucson, the DOJ also objected to proposed District 29. Proposed District 29 was District 29 was District 29. Proposed the DOJ also objected to proposed southwest Tucson, In May 2002 in Arizona, the United States Department of Justice (DOJ) objected under In May 2002 in Arizona, the United States Department of Justice (DOJ) objected In August 2013, the American Civil Liberties Union filed a federal lawsuit against the Boar American Civil Liberties Union filed In August 2013, the of Trustees of Wolf Point, School District 45A, for creating a multimember districting plan a multimember Point, School District 45A, for creating of Wolf of Trustees consent decree recognized that, with respect to District 45, the ideal population for a district to District 45, the ideal population that, with respect recognized consent decree created by cracking the previous Districts 9, 10, 11, and 14, and would have had “a Hispanic Districts 9, 10, 11, and 14, cracking the previous by created for the state, finding that southwest Phoenix voters from the existing House District 22 for the state, finding that southwest Phoenix voters from School Board districts were malapportioned in violation of the 14th Amendment. districts were School Board School District 45A was created with the merger of High School District 45 and Elementary with the merger of High School District was created School District 45A School District 3. Section 5 of the Voting Rights Act (VRA) to the proposed 2001 legislative redistricting plan 2001 legislative redistricting Rights Act (VRA) to the proposed Section 5 of the Voting Cracking that gave residents in a predominantly white voting district vastly more voting power than voting district vastly more white in a predominantly that gave residents Native American voting district. those in a majority to redraw voting areas for board elections and to eliminate two seats from District 3 for the elections and to eliminate two seats from board for voting areas to redraw the ideal population for a district electing three members of the Board should be 1,738, rather should be members of the Board three the ideal population for a district electing than the 430 that it actually had. would “lose their present ability to elect their candidate of choice.” In its proposal, Arizona ability to elect their candidate of choice.” In its proposal, would “lose their present 2014 election. voting age population of 45.1 percent.” In particular the DOJ noted that the majority of voting age population of 45.1 percent.” Arizona: Southwest Phoenix and Central and Southwest Tucson, 2002 Arizona: Southwest Phoenix and Central and Southwest Tucson, The following examples demonstrate how jurisdictions have sought to dilute the minority vot The following examples demonstrate

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145 140 However, the However, The county 138 146 However, “[t]he proposed plan “[t]he proposed However, 144

142 In fact the DOJ provided an illustrative six-district plan In fact the DOJ provided 141 - submit repeatedly During the next several years, the county 136 The DOJ disagreed with this view. It cited evidence to the con- with this view. The DOJ disagreed 147 DOJ again noted that under the existing plan there were three majority- three were DOJ again noted that under the existing plan there 143 Others would have voting age populations of 39.3 percent and 43.5 percent. of 39.3 percent Others would have voting age populations Under the existing method of election, which included six single-member districts, Under the existing method of election,

139 137 135 it in May 2003. in which minorities constituted a majority of the voting age population. The DOJ cited that in which minorities constituted a majority include “incorporated towns within single election districts” and to make access to polling include “incorporated towns within single as well as changes to the method of election for the board of supervisors in Northampton election for the board as well as changes to the method of already in place. In all, the DOJ concluded that after examining the populations in question in already allowing DOJ to conclude that the drop of eight percentage points in the Hispanic voting points in the Hispanic voting of eight percentage that the drop allowing DOJ to conclude District 29 to elect “continued ability of voters in Proposed in the result age population would has no district in which black persons constitute a majority of the [voting age population].” has no district in which black persons constitute a majority of the [voting proposed redistricting plan and change to three two-member districts contained no districts and change to three plan redistricting proposed percent.” places more convenient to voters. places more minority district had previously elected minority candidates), were in office. were elected minority candidates), minority district had previously population above 52.1 percent, whereas the lowest combined minority voting age popula- whereas population above 52.1 percent, minority (two of them majority African-American) districts. much less, three candidates of choice.” much less, three defended its proposed redistricting plan by arguing that Northampton voters no longer voted plan by arguing that Northampton redistricting defended its proposed of choice for the last decade. one district in the proposed plan would have “a minority voting age population of 48.8 one district in the proposed candidates of their choice.” More generally, the DOJ determined that the proposed plan that the proposed the DOJ determined generally, choice.” More candidates of their choice. on “purely racial grounds.” on “purely Moreover, under the proposed plan, none of the districts had a combined minority voting age under the proposed Moreover, Prior to its 2001 redistricting, the board of supervisors for Northampton County, Virginia had for Northampton County, of supervisors board the Prior to its 2001 redistricting, First, in September 2001, DOJ objected to the redistricting plan for the board of supervisors, plan for the board to the redistricting First, in September 2001, DOJ objected County. two majority black supervisor districts where African Americans had elected their candidates African Americans where two majority black supervisor districts two African-American supervisors, both from majority-black districts (and a third majority- majority-black districts (and a third from two African-American supervisors, both tion among the three existing majority-minority districts was 52.8 percent. tion among the three trary, namely that “[i]n the last ten years, no black preferred candidate has won in a district in candidate has won in a district in the last ten years, no black preferred namely that “[i]n trary, ted retrogressive redistricting plans and associated voting changes to DOJ for preclearance. plans and associated redistricting ted retrogressive the proposed plan would have made it unlikely for the minority community to “elect two, the proposed that addressed these concerns. was very similar to the benchmark plan The illustrative plan that addressed would result in a net loss of three districts in which minority voters could elect candidates of minority voters could elect candidates districts in which three in a net loss of would result voting age population of 55.3 percent,” and that Arizona did not present credible evidence credible not present that Arizona did and percent,” population of 55.3 voting age Virginia: Northampton County, 2001-03 Virginia: Northampton The next year Northampton County submitted a new redistricting plan and DOJ objected to The next year Northampton County submitted a new redistricting The DOJ was not persuaded by the county’s argument that these changes were required to required changes were argument that these county’s The DOJ was not persuaded by the ed eferr The court was

153 156 cent of the voting - it held that “the cre 154 The defendants sought to 150 Based on this evidence the DOJ Based on this evidence 148 The defendants also argued that two The defendants also argued that two 152 The court also noted that neither party The court also noted that neither party The court concluded that the plaintiffs are The court concluded that the plaintiffs are 158 159 However, as the trial unfolded the state conceded that “the as the trial unfolded the state conceded that “the However,

151 149

160 ng 36 elections For instance, during trial an expert testified that, in surveying 36 elections 157 It also held that sacrificing influence in one district for the benefit of another “flies It also held that sacrificing influence 155 in New Assembly District 9.” in the face of Section 2’s protection against cracking minority populations.” protection in the face of Section 2’s as Act 43, violated Section 2 of the VRA, by “improperly diluting the citizen voting age diluting by “improperly as Act 43, violated Section 2 of the VRA, age population “from 53.3% to 48.2%, thereby eliminating the ability of black voters to elect 53.3% to 48.2%, thereby age population “from age population in “New Assembly District 8 and 54.03 percent of the voting age population 8 and 54.03 percent age population in “New Assembly District ation of influence districts in lieu of a majority-minority district is not on the menu of options ation of influence districts in lieu of a entitled to relief because “Act 43 fails to create a majority-minority district for Milwaukee’s a majority-minority district for Milwaukee’s because “Act 43 fails to create entitled to relief had argued that in drawing the districts they had given Latinos 60.5 per had argued that in drawing the districts Bartlett v. Strickland, on Bartlett v. not convinced by either argument. Relying population of Latinos across New Assembly Districts 8 and 9.” population of Latinos across basis with other members of the electorate.” majority African-American districts would be cracked by reducing its African-American voting its African-American reducing districts would be cracked by majority African-American rely on voting age population as opposed to citizen voting age population. The defendants on voting age population as opposed to rely blacks nor whites constitute a majority of the total [voting age population], a black-pr constitute a majority of the total [voting blacks nor whites disputed that “Milwaukee’s Latino community bears the socioeconomic effects of historic Latino community bears the socioeconomic effects of historic disputed that “Milwaukee’s and that its depressed discrimination in employment, education, health, and other areas, determined that even a slight reduction in the voting age population would make it less likely in the voting age population would make a slight reduction determined that even relevant measure is citizen voting age population, at least for an ethnic group with as high a with as high voting age population, at least for an ethnic group is citizen measure relevant as Latinos.” of lawful non-citizen residents proportion electoral process on an equal on an equal socioeconomic status hinders its ability to participate in the electoral process en they “ran against one since 1989, Latino candidates only had an 11.1% success rate when they “ran against one In 2012, a federal court held that the state of Wisconsin’s legislative redistricting act, known legislative redistricting state of Wisconsin’s In 2012, a federal court held that the In October 2003, DOJ objected to the proposed redistricting plan for board of supervisors in plan for board redistricting objected to the proposed In October 2003, DOJ or more Caucasian, non-Latino candidates...” or more candidate has only won once in the past three elections.” won once in the past three candidate has only Northampton County for a third time. Under the proposed redistricting plan one of the two redistricting the proposed time. Under for a third Northampton County Latino influence districts would be superior to one majority-minority district. Latino influence districts would be superior Latino population.” for African Americans to elect candidates of choice. for African Americans for relief.” [and] voting is racially polarized, such that the majority group can block the Latino candidate can block the Latino candidate [and] voting is racially polarized, such that the majority group winning.” from their candidates of choice.” which whites were a majority of the [voting age population] and in the district in which neither in the district in age population] and of the [voting a majority were which whites Wisconsin: 2012 The court noted that “Latinos in Milwaukee are politically cohesive in their voting behavior... The court noted that “Latinos in Milwaukee are

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NATIONAL COMMISSION ON VOTING RIGHTS 126

Kendra Glover, a paralegal in the office of the General Counsel of the National Association for the Advancement of Colored People who is from Suffolk, Virginia, testified about the redistricting process in her hometown after the 2010 census. On the right is Jean Jensen, former Secretary of the Virginia State Board of Elections and Guest Commissioner at the NCVR Virginia state hearing. PHOTO CREDIT: ROSE CLOUSTON

Packing

The following examples demonstrate how jurisdictions have sought to dilute the minority vote by over-concentrating such voters into one or as few as possible jurisdictions. This is typically done at the expense of minority-influence districts or districts with small or border- line majorities.

Louisiana: City of Plaquemine, Iberville Parish, 2003 In Louisiana, in December 2003, the DOJ objected to a redistricting plan for the City of Plaquemine, in Iberville Parish. In its proposed plan, the City of Plaquemine sought to create two packed districts, by reassigning and therefore reducing the African-American voting age population in a third district. Under the benchmark plan the city had three districts where African-Americans constituted a majority of the voting age population and were able to elect candidates of their choice to office.161 The proposed packed districts, Districts 2 and 6, would have African-American voting age population percentages of 80.4 and 86.9, re- spectively, while District 3 would see its African-American voting age population drop to 48.5 percent from the benchmark 51.1 percent.162 The DOJ determined that the voting age popu- lation reduction found in proposed District 3, while small, called into question the ability of African-American voters to elect their candidate of choice. The DOJ also determined that the “reduction in the black voting age population percentage in District 3 was neither inevitable nor required by any constitutional or legal imperative.”163

167 Randolph 172 ed in Randolph oup from electing its oup from In so doing, the Board of In so doing, the Board 174 The district court found that the plan The district court found that the plan In fact, the DOJ made clear that the In fact, the DOJ made 168 165 The judgment was left undisturbed on appeal to The judgment was left undisturbed on 170 The Board of Registrars sought to remove Cook as of Registrars sought to remove The Board The DOJ determined that reassigning voters from voters from that reassigning The DOJ determined 173 164

171 In its analysis the DOJ found that the African-American population in District In its analysis the DOJ found that the and the Eighth Circuit affirmed. and the Eighth Circuit 166 169 ing him in a new district—one that was over 70 percent Anglo. ing him in a new district—one that was over 70 percent almost 80 percent African-American – with African Americans from District F, and thereby and thereby District F, – with African Americans from African-American almost 80 percent an Education Board member by simply redrawing the district line around his home and plac- the district line around member by simply redrawing an Education Board eliminate that district’s African-American voting majority by reducing the African-American majority by reducing African-American voting eliminate that district’s driven by any constitutional or statistical necessity.” driven by any constitutional reassignment of sitting Board Chair Henry L. Cook from District 5 to District 4. Chair Henry L. Cook from of sitting Board reassignment districts, plan for the County Board diluted Native American voting strength by packing most of the diluted Native American voting strength plan for the County Board served on the Randolph County Board of Education since 1993, representing a District that a District of Education since 1993, representing served on the Randolph County Board In June 2004, the DOJ objected to a redistricting plan for the City of Ville Platte in Evangeline DOJ objected to a redistricting In June 2004, the In September 2006, DOJ objected to the Randolph County Board of Education’s proposed proposed of Education’s In September 2006, DOJ objected to the Randolph County Board candidate of choice. , Native American citizens and organizations filed suit against County of Thurston, Native American citizens and organizations In Stabler v. city “provided no evidence to rebut the conclusion” that its efforts were intentionally designed that its efforts were the conclusion” to rebut no evidence city “provided candidates of choice, but which defies the categories set forth above, occurr Registrars was effectively seeking to deprive the district of the ability to elect its longstanding Registrars was effectively seeking to deprive the district of the ability to Native American population into three other districts. Native American population into three District F would have produced a “precipitous drop in black voting strength,” which “was not strength,” in black voting drop “precipitous a produced District F would have Parish in Louisiana. In its proposed plan the city sought to pack District B – which was the city sought to pack District B – plan In its proposed Parish in Louisiana. District F.” F had steadily increased since it was created in 1997 and that census data suggested that in 1997 and that census since it was created F had steadily increased County is located in the Southwest corner had of Georgia. Cook, an African-American, County, Georgia. County, County’s Native American population into two voting districts and fragmenting the remaining districts and fragmenting the remaining Native American population into two voting County’s to “retrogress minority voting strength by eliminating the electoral ability of black voters in by eliminating the electoral ability of black voters minority voting strength to “retrogress the Supreme Court. the Supreme was over 70 percent African-American. was over 70 percent voting age population to 38.1 percent. voting age population violated Section 2 and ordered the county to draw a plan with three majority Native American the county to draw a plan with three violated Section 2 and ordered Nebraska: Thurston County, 1997 (Cracking and Packing) Nebraska: Thurston County, 1997 Another example of discriminatory conduct that deprived a minority gr African-Americans constituted a majority 55.1 percent of District F’s voting age population. of District F’s 55.1 percent African-Americans constituted a majority Louisiana: City of Ville Platte, Evangeline Parish, 2004 Parish, 2004 Platte, Evangeline City of Ville Louisiana: A Category of its Own: Randolph County, GeorgiaA Category of its Thurston County, Nebraska. The plaintiffs claimed that the County’s seven member district The plaintiffs claimed that the County’s Nebraska. Thurston County,

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NATIONAL COMMISSION ON VOTING RIGHTS 128 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 129 n, - The 177 In support 178

179 Despite this 2002 decision, the three-member Randolph County Board had Randolph County Board decision, the three-member Despite this 2002 175 The DOJ found it unusual that the Board would revisit an issue “without any would revisit The DOJ found it unusual that the Board 176 intervening change in fact or law, and without notifying Mr. Cook that it was doing so.” and without notifying Mr. intervening change in fact or law, in effect, a decision by a judge in order to disturb an incumbent officeholder.” to disturb an incumbent in effect, a decision by a judge in order anew the proper voter registration location of Mr. Cook and his family members living at his Cook and his family of Mr. location voter registration anew the proper address.” eligibility status, after it was challenged by an opponent. Judge McCorvey found that “the it was challenged by an opponent. eligibility status, after plated by the Laws and Constitutions of both the State of Georgia and the United States and Constitutions of both the State plated by the Laws residence of Henry L. Cook is within the boundaries of such ‘new’ district five as contem is within the boundaries of such ‘new’ of Henry L. Cook residence residency had been raised previously in 2002. At that time, Superior Court Judge Gary that time, Superior Court Judge Gary in 2002. At previously had been raised residency proceeded to hold a special meeting three years later “for the sole propose of determining later “for the sole propose years meeting three to hold a special proceeded of its objection the DOJ further cited a “history of discrimination in voting in the County” and of its objection the DOJ further cited of America.” McCorvey, serving as an acting election superintendent, had held a hearing regarding Cook’s Cook’s regarding superintendent, had held a hearing serving as an acting election McCorvey, DOJ also noted that it was “particularly unusual for officials with no legal training to overtur DOJ also noted that it was “particularly Because Cook’s property had straddled the line between the two districts, the issue of his two districts, the line between the had straddled the property Cook’s Because that the Board failed to carry its burden in demonstrating that Cook’s proposed reassignment reassignment proposed in demonstrating that Cook’s failed to carry its burden that the Board purpose.” to District 4 lacked a “discriminatory

189

edistricting 191 exas’s 2003 exas’s Consequently, the Consequently, The Court also 186 188 essional r exas, in T The Legislature then added The Legislature District 23 was redrawn by District 23 was redrawn All three redistricting plans redistricting All three 185 180 192 - the Court held that the 2003 congres Accordingly, 190 The Supreme Court noted Texas’s well-documented history Court noted Texas’s The Supreme 187 Bonilla likely prevailed in that election because “88% of non- Bonilla likely prevailed 182 To protect Bonilla’s seat the Texas Legislature divided District 23 by Legislature seat the Texas Bonilla’s protect To 183 After his election in 1992, Bonilla’s share of Latino support decreased with each of Latino support decreased share After his election in 1992, Bonilla’s This change alone reassigned 100,000 individuals from Bonilla’s district to “another Bonilla’s 100,000 individuals from This change alone reassigned 181 The panel concluded that the State of Texas engaged in intentional discrimination The panel concluded that the State of Texas 184 193 largely Anglo—and Republican—voters from neighboring central Texas. neighboring from largely Anglo—and Republican—voters lengths in its post-2010 redistricting. Deciding to bypass the DOJ preclearance process, process, Deciding to bypass the DOJ preclearance lengths in its post-2010 redistricting. among the Latino voters that Bonilla was unresponsive to their needs. to was unresponsive among the Latino voters that Bonilla and west Texas would have to be redrawn to remedy the Section 2 violation. to remedy would have to be redrawn and west Texas against minority voters in enacting the 2011 State Senate and congr election cycle, bottoming out in 2002 when he “captured only 8% of the Latino vote and when he “captured election cycle, bottoming out in 2002 - political rather than racial goals, re largely motivated by noted that even if the changes were drawing a district along racial lines to protect an incumbent is not a valid policy justification. an incumbent protect drawing a district along racial lines to plans. The reviewing courts found that the State repeatedly manipulated district lines to the manipulated district lines to the that the State repeatedly courts found plans. The reviewing voters. detriment of minority district in which Latinos already controlled election outcomes.” controlled district in which Latinos already removing half of Webb County and the city of Laredo. At the time, Webb County was 94% At the time, Webb and the city of Laredo. County half of Webb removing support. sional redistricting plan bore “the mark of intentional discrimination,” and the districts in south “the plan bore sional redistricting , the Supreme Court held in Perry, the Supreme American Citizens (LULAC) v. In League of United Latin congressional redistricting plan violated Section 2 of the VRA. redistricting congressional of discrimination, and that the diminishing support for Congressman Bonilla indicated a belief Bonilla support for Congressman of discrimination, and that the diminishing congressional redistricting plan and its 2011 congressional, State Senate, and State House State congressional, plan and its 2011 redistricting congressional choice as “[t]hey were becoming more politically active, with a marked and continuous rise in politically active, with becoming more choice as “[t]hey were 51.5% of the overall vote.” D.C. Latino share of the citizen voting age population in District 23 dropped from 57.5 percent be- 57.5 percent from the citizen voting age population in District 23 dropped of Latino share House of Representatives, the Texas Senate, and Congress. the Texas House of Representatives, Federal courts have found that Texas violated the Voting Rights Act with respect to its 2003 to with respect Rights Act Voting violated the found that Texas Federal courts have Latinos voted for him.” Latino. fore redistricting to 46 percent. redistricting fore Undeterred by the Supreme Court’s decision, the Texas Legislature went to even greater went to even greater Legislature Texas decision, the Court’s by the Supreme Undeterred Spanish-surnamed voter registration.” the Legislature to protect incumbent Republican Henry Bonilla, who had decreasing Latino Latino incumbent Republican Henry Bonilla, who had decreasing to protect the Legislature were denied preclearance by a three-judge panel of the federal district court in Washington panel of the federal district court in Washington by a three-judge preclearance denied were 2006 that changes to District 23, a Latino-majority district in west T 2006 that changes to District 23, a Latino-majority Case SpotlightCase Texas filed suit in July 2011 for judicial preclearance of new redistricting plans for the Texas redistricting plans for the of new filed suit in July 2011 for judicial preclearance Texas The Court observed that Latino voters in District 23 were poised to elect their candidate of poised The Court observed that Latino voters in District 23 were Texas Redistricting Post–2000Texas

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NATIONAL COMMISSION ON VOTING RIGHTS 130 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 5 NATIONAL COMMISSION ON VOTING RIGHTS 131 Evidence 195 197

194 For example, as to the congressional plan, For example, as to the congressional 200 (2) as a result of the growth in population, the of the growth (2) as a result 201 198 and (3) nonetheless, the number of seats to which 202 The court also cited testimony by Texas State Senator Rodney Ellis, State Senator testimony by Texas The court also cited 196

199 effectively in the political process. cohesive and geographically concentrated Latino and African American African Latino and cohesive and geographically concentrated of those communities in districts in which communities and placed members community in Fort Worth is “exported” into rural District 22—an Anglo- into rural District 22—an “exported” is Worth community in Fort The [County]. over 120 miles south to Falls controlled District that stretches remains in the reconfigured majority Anglo District 10. remains in the reconfigured majority and Hispanic voters into three other districts that share few, if any, common if any, districts that share few, and Hispanic voters into three other Hispanic Ft. Worth North Side community is placed in Anglo suburban District North Side community is placed in Worth Hispanic Ft. interests with the existing District’s minority coalition. The African American African The minority coalition. interests with the existing District’s they have no opportunity to elect candidates of their choice or participate they have no opportunity to elect The state legislature, in dismantling benchmark SD 10 cracked the politically The state legislature, The demolition of District 10 was achieved by cracking the African American African achieved by cracking the The demolition of District 10 was 12, based in Denton County, while the growing Hispanic population South side based in Denton County, 12, and 2010 of which Latinos accounted for 65 percent of the increase, African Americans 13.4 of the increase, and 2010 of which Latinos accounted for 65 percent evidence and clear on-the-ground evidence of cracking minority communities of interest in in evidence of cracking minority communities of interest evidence and clear on-the-ground discriminate against voters on the basis of race. percent and Asian-Americans 10.1 percent; and percent plans, that the State House and congressional plans were retrogressive, and that the State and that the State retrogressive, were plans and congressional the State House plans, that minority voters could elect a candidate did not increase (two of the three judges concluded the three (two of minority voters could elect a candidate did not increase state gained four congressional seats; state gained four congressional f largely unrebutted defense defense show that it acted without discriminatory purpose in the face of largely unrebutted District 10 (SD 10) was located in Tarrant County, which includes Fort Worth. which includes Fort County, was located in Tarrant District 10 (SD 10) Latinos in [SD 10].’” Lichtman, who wrote: House plan also showed signs of purposeful discrimination. House plan also showed from the trial cited by the Court included testimony by the defendant’s own expert, Dr. John own expert, Dr. included testimony by the defendant’s the trial cited by the Court from Ultimately, the court denied preclearance “because Texas failed to carry its burden to to failed to carry its burden “because Texas denied preclearance the court Ultimately, SD 10.” the court made the following findings: (1) Texas grew by 4.3 million people between 2000 Texas grew the court made the following findings: (1) who explained that: who explained that: Alford, who agreed that “the enacted plan ‘diminishes the voting strengths of Blacks and ‘diminishes the voting strengths that “the enacted plan who agreed Alford, The case regarding the Senate plan focused on Senate District 10. The existing Senate focused on Senate District 10. The the Senate plan The case regarding The court’s findings of fact detailed other actions taken by the State of Texas to intentionally findings of fact detailed other actions taken by the State of The court’s This testimony was further supported by a report provided by expert witness Dr. Allan J. by expert witness Dr. provided by a report This testimony was further supported

206

This was 213 208 ogressive effect ogressive etr

212 .”

204 In this way, districts with large minority districts with large In this way, In terms of the process used to create used to create In terms of the process 209 207 In addition, the court noted that the legislature that the legislature the court noted In addition, 203 The court did note, however, that it had been presented with sub- with presented that it had been however, The court did note, 205 The court cited the testimony provided by the lead house map-drawer, Gerardo Gerardo map-drawer, by the lead house The court cited the testimony provided The court found this evidence “concerning because it shows a deliberate, race con- 211 210 intentional discrimination, but did conclude that the plan would have a r but did conclude that the plan intentional discrimination, attention to, training on, or concern VRA.” for the accomplished by using “voting and population data” to distinguish “between minorities who accomplished by using “voting and population ers.” had removed the “economic guts” from the African-American districts, but “[n]o such surgery districts, but “[n]o such the African-American guts” from the “economic had removed populations could be created that would feature “a much smaller number of minority vot- that would feature populations could be created the Hispanic specifically, Democratic vote but, more scious method to manipulate not simply stantial evidence that the State House plan was also motivated by discriminatory intent. the State House plan was also motivated stantial evidence that Interiano, which it found “reinforces evidence suggesting map-drawers cracked [voter tabula- evidence suggesting map-drawers Interiano, which it found “reinforces challenged in consolidated Section 2 lawsuits with trial to occur in summer 2014. challenged in consolidated Section 2 on minority voters. Legislature enacted new plans. The new congressional and State House plans are being being House plans are and State new plans. The new congressional enacted Legislature For instance, the court noted that “the process for drawing the House Plan showed little for drawing the House Plan showed noted that “the process For instance, the court House District 117, the court noted that map-drawers altered it “so that it would elect the map-drawers altered House District 117, the court noted that tion districts] along racial lines to dilute minority voting power tion districts] along racial lines to dilute that this number had decreased by one). had decreased that this number turnthose who do not …” out heavily to vote and was performed on the districts of Anglo incumbents.” was performed on With regard to the State House redistricting plan, the court did not make formal findings of the court did not make formal findings plan, House redistricting to the State With regard vote.” Anglo-preferred candidate yet would look like a Hispanic ability district on paper.” candidate Anglo-preferred decision, and after the Texas decision, and after the Texas decision was vacated after the Shelby County The panel’s

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NATIONAL COMMISSION ON VOTING RIGHTS 132 Deciding to bypass the DOJ preclearance process, Texas filed suit in July 2011 for judicial preclearance of new redistricting plans for the Texas House of Representatives, the Texas Senate, and Congress. All three redistricting plans were denied by a three-judge panel of the federal district court in Washington D.C. The panel concluded that the State of Texas engaged in intentional discrimination against minority voters in enacting the 2011 State Senate and congressional redistricting plans, that the State House and congressional plans were retrogressive, and that the State House plan also showed signs of purposeful discrimination. “The intimidation I faced as a lead plaintiff I wouldn’t want to wish it on anybody.”

–Mark Wandering Medicine on the hardships he and his daughter faced as a result of his participation in a voting rights case seeking satellite offices for in-person absentee voting on Indian reservations in Montana. PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 135 PHOTO CREDIT: JOHNNY SUNDBY PHOTO CREDIT: have that ballot counted. Many of these practices have been shown to disproportionately im- have that ballot counted. Many of these practices have been shown to disproportionately needed to prevent noncitizens from registering and voting. Despite scant evidence that this and voting. Despite scant evidence registering noncitizens from needed to prevent minority voters’ full and unencumbered access to the ballot. minority voters’ full and unencumbered pact minority voters by preventing or simply deterring their participation in elections. Some of pact minority voters by preventing of voter intimidation reports in heavily-minority communities. Finally, and closures relocations beyond the qualification and registration processes. Voters who have successfully registered registered Voters who have successfully registration processes. beyond the qualification and recent decades. As discussed below, these laws now deny the right to vote to 2.2 million As discussed below, decades. recent registration methods that are most accessible to and popular among minority voters, such most accessible to and popular among methods that are registration minority voters, in numerous respects, still confront barriers when trying to register and cast a barriers when trying to register still confront respects, minority voters, in numerous the country. ballot throughout mid-1990s, a new generation of tactics for limiting minority voters’ access to the ballot has mid-1990s, a new generation of tactics is a problem, these states have adopted heightened requirements for proving citizenship in for proving requirements these states have adopted heightened is a problem, and discriminatory voter challenge efforts indicate that both tactics continue to undermine and discriminatory voter challenge efforts indicate that both tactics continue are now facing an array of practices that may impede their ability to actually cast a ballot and now are as community voter registration drives and registration through public assistance agencies. through drives and registration as community voter registration citizens because at some point in time they were convicted of a felony. While felony disen- of a felony. convicted they were citizens because at some point in time substantially in their impact has grown 19th century, franchisement laws date back to the order to register to vote that can pose obstacles for minority voters in particular. voters in particular. to vote that can pose obstacles for minority to register order emerged. Though these have replaced poll taxes, literacy tests, and other overt mechanisms poll taxes, literacy tests, and other overt mechanisms emerged. Though these have replaced in this chapter demonstrate that era, the practices covered Rights Act (VRA) of the pre-Voting the most concerning include new state laws that limit the acceptable types of voter identifica- substantial cutbacks least likely to possess, tion (ID) to those types that racial minorities are and polling place to the days and hours of early voting periods popular with minority voters, Unfortunately, the post-VRA methods of restricting minority voters’ access to the ballot go the post-VRA methods of restricting Unfortunately, I. INTRODUCTION I. variety of tests and devices to prevent minority voters from registering to vote. Since the registering voters from minority devices to prevent variety of tests and Other states have focused a great deal of energy on burdensome procedures they claim are they claim are procedures deal of energy on burdensome Other states have focused a great Since the mid-1990s, states have curtailed voter registration opportunities by limiting the voter registration Since the mid-1990s, states have curtailed CHAPTER 6 CHAPTER Access to the Ballot Access to African Americans nationwide. An additional discriminatory device discussed in this chapter is the disenfranchisement of An additional discriminatory device discussed As discussed in Chapter 1, states and their political subdivisions have historically used a 1, states and their political subdivisions As discussed in Chapter -

3 - Given their 2

4

1 popularity, limitations on the ability of citizens and grassroots organizations to conduct voter ability of citizens and grassroots limitations on the popularity, for minority voters. registration opportunities drives can significantly impact registration return—the applications they collected to election officials. The League of Women Voters and Women of return—the applications they collected to election officials. The League proven effective, with participating groups having registered tens of millions of voters from tens of millions of voters from registered having effective, with participating groups proven regulatory action, states and local jurisdictions have shown that the threat to minority vot- the threat local jurisdictions have shown that action, states and regulatory provisions imposing fines for late delivery of completed applications, requiring those conduct- imposing fines for late delivery of completed applications, provisions required voter registration groups to account monthly for all registration forms used and not to account monthly for all registration groups voter registration required including imposing large fines on organizations and citizens who failed to submit—or timely including imposing large fines on organizations and citizens who failed to ing drives to pre-register with the State, and requiring them to submit quarterly reports of them to submit quarterly reports with the State, and requiring ing drives to pre-register ing through drives at nearly twice the rate of whites (8.9 percent compared to 4.4 percent), to 4.4 percent), compared (8.9 percent drives at nearly twice the rate of whites ing through Florida has been one of the epicenters of recent efforts to curtail community registration registration curtail community efforts to of recent Florida has been one of the epicenters applications to election officials. permitted to transmit completed voter registration als were such as the National Voter Registration Act (NVRA), and through troubling legislative and troubling Act (NVRA), and through Registration Voter such as the National and receive assistance with the registration process. Community-based registration has Community-based registration process. assistance with the registration and receive around voting remain a significant concern. Through non-compliance with federal laws, a significant concern. Through voting remain around acting an even more onerous and complex set of requirements. In addition to pre-existing In addition to pre-existing and complex set of requirements. onerous acting an even more and African Americans also reported registering at a higher rate (7.2 percent). at a higher rate (7.2 registering and African Americans also reported other groups sued, and a federal court enjoined the law, finding that the severity of the fines sued, and a federal court enjoined the law, other groups for participation in the political process. By reaching would-be voters at common community would-be voters By reaching for participation in the political process. or senior centers, community campuses, festivals, gathering places, such as churches, ers’ access to the ballot continues unabated. ers’ access to the til the State began compliance with the NVRA in 1995 that private organizations and individu til the State began compliance with the NVRA in 1995 that private organizations that minorities rely more heavily on community drives than whites. Latinos reported register heavily on community drives than whites. Latinos reported more that minorities rely In 2011, the Florida Legislature again sought to restrict community registration drives, en- community registration again sought to restrict In 2011, the Florida Legislature drives. Historically, Florida did not allow private citizens to conduct such drives; it was not un- drives. Historically, drives can make it easier for individuals with time, mobility, or language challenges to register or language challenges to register with time, mobility, drives can make it easier for individuals II. COMMUNITY VOTER REGISTRATION DRIVES VOTER REGISTRATION COMMUNITY II. voter registration activities, the new law added some additional requirements. The new law The activities, the new law added some additional requirements. voter registration Community-based voter registration drives play an essential role in expanding opportunities drives play an essential role Community-based voter registration 2000 to 2008. As demonstrated throughout this chapter, racial discrimination in laws and practices in laws and racial discrimination this chapter, throughout As demonstrated Ten years later, in 2005, the State enacted a series of restrictions on citizen registration efforts, on citizen registration in 2005, the State enacted a series of restrictions years later, Ten The available data from surveys conducted by the U.S. Census Bureau in 2010 indicates in 2010 surveys conducted by the U.S. Census Bureau The available data from “chill[ed] Plaintiffs’ First Amendment speech and association rights…”

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6 12 By 8 Several election supervisors 11 The League of Women Voters and other Voters The League of Women 5

9 Results from a U.S. Census Bureau survey indicated that, in 2008, 10.9 percent that, in 2008, 10.9 percent survey indicated a U.S. Census Bureau Results from 7 National Council of La Raza (NCLR) and the League of Women Voters of Florida Voters National Council of La Raza (NCLR) and the League of Women 10 deliver applications to a voter-registration office and effectively prohibit an deliver applications to a voter-registration severely restrict an organization’s ability to [conduct registration drives]. The[y] registration drives]. ability to [conduct an organization’s severely restrict record-keeping and reporting requirements that serverecord-keeping and reporting requirements little if any purpose… organization from mailing applications in. And the[y] […] impose burdensome And the[y] […] impose burdensome in. organization from mailing applications […] impose a harsh and impractical 48–hour deadline for an organization to and impractical 48–hour deadline […] impose a harsh less prone to view government as being friendly” and may prefer registering with someone of registering to view government and may prefer as being friendly” less prone new restrictions (necessary because five Florida counties were covered under Section 5 of under Section covered counties were (necessary because five Florida new restrictions impact” on the Florida NAACP’s ability to recruit branch units and members to participate ability to recruit impact” on the Florida NAACP’s efforts in the registration drives and as “crippling” the organization’s in voter registration istrative rule, imposed moratoriums on their community registration drives. The Supervisor of Elections for imposed moratoriums on their community registration solicited or collected voter registration applications. voter registration solicited or collected Before the 2011 law was enjoined (in significant part) by the court in Florida, the State of the 2011 law was enjoined (in significant Before for the Section 5 preclearance Washington D.C. seeking Florida filed suit in federal court in upon the First Amendment. That court found that the new law, and its accompanying admin- law, That court found that the new upon the First Amendment. used in voter registration drives, return completed forms to election officials within 48 hours officials within forms to election completed drives, return registration used in voter Hillsborough County sympathized, adding that some individuals in minority communities “are County sympathized, adding that some individuals in minority communities “are Hillsborough of African Americans and 10.4 percent of Hispanics in Florida registered through community through registered of Hispanics in Florida of African Americans and 10.4 percent groups again sued and, once again, a federal court in Florida issued an injunction based again, a federal court in Florida issued again sued and, once groups of receipt from the voter, and file the names of every officer, employee, or volunteer who file the names of every officer, and the voter, from of receipt comparison, whites reported registering through drives at notably lower rates—5.2 percent in percent drives at notably lower rates—5.2 through registering comparison, whites reported community registration drive restrictions on minority voters. In 2008 and 2010, Florida’s and 2010, Florida’s on minority voters. In 2008 drive restrictions community registration their ability to register their constituents. The law was described as having a “devastating their ability to register than whites. the VRA). Although there was no finding of discrimination in that case concerning registra- in that case concerning was no finding of discrimination the VRA). Although there that lawsuit demonstrated the potential impact of tion drives, the evidence developed in testified that the limitations on community registration drives in formerly covered counties counties formerly covered registration drives in testified that the limitations on community their own race or ethnicity or who speaks their same language. would reduce voter registration opportunities—and registration rates—for minority voters. rates—for minority opportunities—and registration voter registration would reduce drives. In 2010, the rates were similar at 10.0 percent and 12.0 percent, respectively. and 12.0 percent, similar at 10.0 percent drives. In 2010, the rates were State. Civic groups submitted testimony in the case on the burdens the restrictions placed on the restrictions submitted testimony in the case on the burdens Civic groups 2008 and 5.3 percent in 2010. 2008 and 5.3 percent African-American and Hispanic voters registered through community drives at higher rates through registered African-American and Hispanic voters and since 2002, 18 ectly to elections officials Efforts of private organizations, 19 By comparison, 37.6 percent of SNAP By comparison, 37.6 percent 15 Hispanics comprised 30.0 percent of Hispanics comprised 30.0 percent This surge in registration is also indicative This surge in registration 14 20 17 Census data further shows that minorities tend to register to vote tend to register Census data further shows that minorities 16 There has been significant, widespread noncompliance with Section noncompliance with Section has been significant, widespread There 13 households and 31.8 percent of TANF families are white, a small share relative to their share to their share relative white, a small share families are of TANF households and 31.8 percent public assistance offices, registration plummeted by almost 80 percent over the next decade, registration plummeted by almost 80 percent public assistance offices, registration opportunities. registration low-income citizens who have applied to register to vote at public assistance of- additional low-income citizens who have applied to register istration forms to their clients; and submit completed applications dir istration forms to their clients; and submit individuals, and these data demonstrate that states’ full compliance with Section 7 will create Section 7 will create individuals, and these data demonstrate that states’ full compliance with PUBLIC ASSISTANCE AGENCIES DIMINISHES ACCESS PUBLIC ASSISTANCE FOR MINORITY VOTERS Nationally, African Americans disproportionately receive benefits from two of the larger public benefits from receive African Americans disproportionately Nationally, Recent data (SNAP). and Supplemental Nutrition Assistance Program Needy Families (TANF) such as the Lawyers’ Committee, Demos, and Project Vote, have resulted in nearly 2 million in nearly 2 million have resulted Vote, such as the Lawyers’ Committee, Demos, and Project sistance agencies administering benefit programs that fall within the scope of Section 7 are 7 are that fall within the scope of Section administering benefit programs sistance agencies significant benefits to minority voters, in particular. The marked increase in new registration in new The marked increase significant benefits to minority voters, in particular. assistance programs covered under Section 7 of the NVRA—Temporary Assistance for under Section 7 of the NVRA—Temporary covered assistance programs at public assistance agencies more than whites. Latinos register through agencies at four agencies at four through than whites. Latinos register at public assistance agencies more agencies, offer a comprehensive set of voter registration services to their clients. Public as- services to their clients. Public registration set of voter comprehensive agencies, offer a of how significant non-compliance with Section 7 of the NVRA had become; after the first of how significant non-compliance with Section 7 of the NVRA had become; from each program indicates that African Americans accounted for 31.9 percent of TANF of TANF that African Americans accounted for 31.9 percent indicates each program from of households on SNAP. families and 23.6 percent on a voter’s behalf. on a voter’s generally required to distribute registration applications with each public assistance applica- applications with to distribute registration generally required following successful enforcement actions or negotiations by public interest groups reinforces reinforces groups actions or negotiations by public interest following successful enforcement of the overall population. two years of NVRA implementation (1995-1996), when 2.6 million individuals registered at registered two years of NVRA implementation (1995-1996), when 2.6 million individuals times the rate of whites (2.8 percent versus 0.7 percent), and African Americans at three and African Americans at three versus 0.7 percent), times the rate of whites (2.8 percent times the rate (2.5 percent). tion, recertification, renewal, or change of address; provide assistance completing voter reg- completing voter assistance provide address; renewal, or change of tion, recertification, the Department of Justice (DOJ) settled suits against Rhode Island and Tennessee, and en- the Department of Justice (DOJ) settled suits against Rhode Island and Tennessee, out-of-court settlements with Arizona and Illinois. into tered this. Since 2008, settlements in private lawsuits and outside of court have been reached with been reached this. Since 2008, settlements in private lawsuits and outside of court have III. FAILURE TO PROVIDE VOTER REGISTRATION AT TO AT VOTER PROVIDE III. FAILURE REGISTRATION Section 7 of the NVRA requires that state public assistance agencies, as well as certain other assistance agencies, as well as certain that state public requires Section 7 of the NVRA Georgia, Indiana, Missouri, New Mexico, Ohio, Pennsylvania, and Alabama, fices, most of which occurred in the last six years. fices, most of which occurred 7 across the country, which can have serious consequences for minority voters’ access to which can have the country, 7 across The NVRA was designed to expand access to registration opportunities for low-income The NVRA was designed to expand access to registration TANF families and 9.1 percent of SNAP households. families and 9.1 percent TANF

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22 This steep decline is particularly striking because it oc- striking because decline is particularly This steep 21 curred during a period when participation in SNAP was increasing substantially. participation in SNAP was increasing during a period when curred the more convenient and accessible avenues for voter registration available to minority voters. avenues for voter registration convenient and accessible the more to just 540,000 during 2005-2006. to just 540,000 Continuing noncompliance by state public assistance agencies threatens to foreclose one of to foreclose threatens by state public assistance agencies Continuing noncompliance

23

24 necessity of registering multiple times often prevented participation in municipal elections. multiple times often prevented necessity of registering registration system was enacted in 1892, along with a number of other provisions designed with a number of other provisions system was enacted in 1892, along registration separately for municipal elections, and this to register required voters were prospective voters, for whom the poor African-American on disproportionately posed a particular burden Mississippi has one of the worst histories with dual voter registration. The State’s dual The State’s with dual voter registration. Mississippi has one of the worst histories Reconstruction era. Once thought to be a thing of the past, the practice has unfortunately Once thought to be a thing of the Reconstruction era. For much of the next century, Mississippi maintained its dual registration system, becoming system, becoming Mississippi maintained its dual registration For much of the next century, who handle and process the voter registrations. It’s confusing to the organizations conducting voter registration conducting voter registration confusing to the organizations It’s the voter registrations. who handle and process of registration are registered for some, but not all, purposes. Alongside poll taxes, literacy for some, but not all, purposes. registered are of registration years. in recent of a renaissance enjoyed somewhat court overturned the dual registration system, holding that it was a violation of Section 2 of system, holding court overturned the dual registration tion of dual voter registration systems, wherein voters who register using certain means who register voters wherein systems, tion of dual voter registration in many Southern enacted the states following such systems were tests, and other tactics, Under the 1892 law, the electoral process. from to exclude African-American citizens the last state to have such a law, and refining it as recently as 1984. Finally, in 1987, a federal recently as 1984. Finally, it as and refining the last state to have such a law, the VRA. One method of restricting voting opportunities for minorities has been the implementa- opportunities for minorities has been voting One method of restricting Case SpotlightCase confusing, and burdensome voter registration systems in the country. It’s confusing to the county recorders the county recorders confusing to It’s systems in the country. voter registration confusing, and burdensome guides, and it’s confusing to our voters who monitor it.” –Patty Hansen, Coconino County Recorder, at the NCVR confusing to our voters who monitor it.” –Patty Hansen, Coconino County Recorder, guides, and it’s What is Old Registration is Again: New Dual Voter Systems PHOTO CREDIT: MIKE ELLER (HMA PUBLIC RELATIONS) Arizona state hearing. PHOTO CREDIT: “Arizona has recently implemented this dual voter registration system, and I believe it is one of the most complex, system, and I believe it is one of implemented this dual voter registration “Arizona has recently

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27 When 28 26 The resurrection of dual registration, with its sordid with its sordid registration, of dual The resurrection 29 Mississippi’s implementation of the law allowed voters who registered under the under voters who registered implementation of the law allowed Mississippi’s 25 history of suppressing poor and minority voters, is a matter of continuing concern. history of suppressing ments to voting for federal offices only. ments to voting for federal offices purposes. After DOJ raised concerns, Mississippi refused to submit this system for Section to submit this system raised concerns,purposes. After DOJ Mississippi refused in state elections, they were required to re-register using state forms. By contrast, every using state forms. By contrast, to re-register required they were in state elections, NVRA-mandated options to vote in federal elections only. If those voters wanted to vote to vote in federal elections only. NVRA-mandated options Pursuant to the NVRA, Mississippi was required to permit voter registration for federal voter registration to permit Mississippi was required Pursuant to the NVRA, accompanied by the specific documentary proof of citizenship that state law requires. that state law of citizenship proof accompanied by the specific documentary elections through a federal mail-in form, at driver’s license offices, and at public assistance license offices, form, at driver’s a federal mail-in elections through offices. to “accept and use” the NVRA’s federal mail-in registration forms, even when they are not even when they are forms, federal mail-in registration to “accept and use” the NVRA’s other state implementing the NVRA’s requirements made NVRA registrations effective for all made NVRA registrations requirements the NVRA’s other state implementing the State did so, DOJ objected, and the State abandoned the dual registration system. the State abandoned the dual registration the State did so, DOJ objected, and - require the states’ documentary proof-of-citizenship the federal form but who do not satisfy 5 preclearance, and private plaintiffs commenced a Section 5 enforcement action, with the action, with the enforcement plaintiffs commenced a Section 5 and private 5 preclearance, In 1995, Mississippi implemented a new dual registration system in response to the NVRA. to the NVRA. response system in registration a new dual implemented In 1995, Mississippi dual voter registration systems. These systems would limit citizens who register to vote using systems. These systems would limit citizens who register dual voter registration Several years later, dual voter registration has been revived by two states following the has been revived registration dual voter Several years later, required ITCA. That ruling held that states are in Arizona v. 2013 decision Court’s Supreme Supreme Court ultimately holding that the State was required to obtain preclearance. was required Court ultimately holding that the State Supreme Adopting a tack similar to Mississippi’s, Arizona and Kansas are in the process of adopting in the process Arizona and Kansas are Adopting a tack similar to Mississippi’s, - - -

31 Accordingly, state officials Accordingly, 30 that they would Local election officials informed thousands of voters by letter that they would 32 have adopted new procedures ostensibly intended to purge noncitizens from registration registration intended to purge noncitizens from ostensibly procedures have adopted new types of activity raise Both for voter registration. requirements heightened proof-of-citizenship ey use the printout as a means noncitizens to local election officials with instructions that they use the printout as a means rolls—which have often led to the improper purge of eligible citizen voters—or have imposed of eligible citizen voters—or have purge to the improper have often led rolls—which properly, purges are an important part of effective election administration. However, problems problems election administration. However, an important part of effective purges are properly, subsequent naturalization (and thus voting eligibility). Because a substantial major not reflect pate in the political process. process. pate in the political registration list with citizenship information in the statewide driver’s license database—to license database—to the statewide driver’s list with citizenship information in registration ing the citizenship of registered voters and voter registration applicants. In particular, states In particular, applicants. registration voters and voter of registered ing the citizenship its systematic failure to update driver’s license records after an individual’s naturalization. after an individual’s license records to update driver’s its systematic failure ized citizenship matching procedure to identify and remove noncitizens from its voter rolls. its voter rolls. noncitizens from to identify and remove ized citizenship matching procedure in Georgia had license database. The matching procedure driver’s information in the state’s information. identify noncitizen registrants. While there is little dispute that this matching is a useful aid While there identify noncitizen registrants. high rates of false positives and the potential for in identifying potentially ineligible voters, ity of recently naturalized citizens immigrated from Latin America, sub-Saharan Africa, or Asia, naturalized citizens immigrated from ity of recently Numerous states have adopted citizenship verification procedures to facilitate purges of in- to facilitate purges procedures states have adopted citizenship verification Numerous should be careful not to presume that those identified in the matching are noncitizens. that those identified in the matching are not to presume should be careful arise when purge procedures seemingly target minority voters, or impose unreasonable citi- impose unreasonable seemingly target minority voters, or arise when purge procedures person with the wrong is matched (i.e., a registrant shortcomings, such as matching errors a high rate of error, which disproportionately impacted minority voters, in part because of impacted minority voters, in part because of which disproportionately a high rate of error, concerns to partici citizens, particularly minorities, about their impact on the ability of eligible eligible voters from their registration lists. As discussed later in this chapter, when conducted lists. As discussed later in this chapter, their registration eligible voters from of reviewing voter eligibility, without providing uniform procedures about how to use that about how to use that uniform procedures without providing voter eligibility, of reviewing computerized matching process—which typically involves cross-checking the statewide voter typically involves cross-checking computerized matching process—which database may license information in the driver’s on the license list) or because the citizenship this latter problem particularly impacts minority communities. this latter problem In recent years, a number of states have adopted additional procedures related to confirm- related states have adopted additional procedures years, a number of In recent Its procedure involved cross-checking the statewide voter registration list with citizenship citizenship list with the statewide voter registration involved cross-checking Its procedure discrimination raise serious concerns. The high error rates are usually the result of predictable of predictable the result usually rates are discrimination raise serious concerns. high error The IV. PROOF OF CITIZENSHIP PROOF OF IV. Citizenship Verification for List Maintenance for Verification Citizenship zenship verification burdens on such voters. zenship verification burdens An example from Georgia is particularly instructive. In 2007, Georgia instituted a computer An example from After Georgia performed this matching, it provided a computer printout of the potential a computer printout of the potential After Georgia performed this matching, it provided A significant portion of voter purges are aimed at identifying noncitizens. Many states use a aimed at identifying are A significant portion of voter purges

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NATIONAL COMMISSION ON VOTING RIGHTS 142 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 143 - - Mr. 34

38 The Secretary of State tem- The Secretary 41 There were widespread complaints widespread were There 40

42 Over one half of the new registrants initially flagged as non- Over one half of the new registrants

37 35 in at least some cases providing a very short time period—as little a very short time period—as little providing in at least some cases 33 DOJ confirmed the disproportionate impact after conducting its own DOJ confirmed the disproportionate 36

39 - new reg of equal shares comprised approximately period, African Americans and whites procedure for preclearance. Shortly before the November 2008 general election, a federal general election, a federal the November 2008 Shortly before for preclearance. procedure be removed from the voter registration lists unless they appeared and presented proof of of proof presented and appeared lists unless they registration the voter from be removed porarily suspended the program. program also had a disparate effect on minority voters: 82 percent of voters on the list sent also had a disparate effect on minority voters: 82 percent program presenting birth certificates, proof of naturalization, or other documentation. birth certificates, proof presenting provided proof of citizenship by the deadline indicated. proof provided referenced state driver’s license records with its voter registration lists. The Florida Secretary lists. The Florida Secretary with its voter registration license records state driver’s referenced istrants, yet over 60 percent more African Americans were flagged as potential noncitizens African Americans were more istrants, yet over 60 percent it obtained preclearance and ordered the State to take steps to remedy its previous unau its previous remedy the State to take steps to and ordered it obtained preclearance in April 2006 and became a citizen in November 2007, received multiple such letters from multiple such letters from received a citizen in November 2007, in April 2006 and became it filed suit, and at DOJ’s urging, Georgia revised its verification procedure, making it more it more making procedure, revised its verification urging, Georgia it filed suit, and at DOJ’s Morales brought a Section 5 enforcement action because the State had failed to submit this failed to submit this action because the State had 5 enforcement a Section Morales brought suit moot. and/or Hispanic voters to additional and, more importantly, erroneous burdens on the right burdens erroneous importantly, and, more and/or Hispanic voters to additional analysis of new voter registrants during the period May 2008 through March 2009. Over that 2009. Over March during the period May 2008 through analysis of new voter registrants as a few days—to do so. One voter, Jose Morales, who had obtained his driver’s license license Morales, who had obtained his driver’s Jose do so. One voter, as a few days—to about the list’s inaccuracy and its reliance on outdated immigration status information. The inaccuracy and its reliance about the list’s accurate and less discriminatory. DOJ precleared the amended version, rendering the law the amended version, rendering DOJ precleared accurate and less discriminatory. a smaller list of approximately 2,700 individuals to local election officials for action. Local a smaller list of approximately thorized use of the process. court in Georgia enjoined the State from using the challenged voter verification process until until verification process using the challenged voter the State from court in Georgia enjoined to register to vote.” to register citizens were, in fact, citizens and were forced to take additional steps to prove as much by to take additional steps to prove forced fact, citizens and were in citizens were, of State identified over 180,000 registrants as potential noncitizens, and ultimately sent of State identified over 180,000 rolls unless they from the removed officials notified those on the lists that they would be than whites. Similarly, Latino and Asian registrants were more than twice as likely as whites than more were and Asian registrants Latino than whites. Similarly, to be flagged as noncitizens. their U.S. citizenship, to local officials were minorities, and the majority were Latino. minorities, and the majority were to local officials were In May 2009, DOJ interposed a Section 5 objection to the procedure, noting that “[t]his 5 objection to the procedure, In May 2009, DOJ interposed a Section In 2012, Florida sought to institute a database matching procedure through which it cross- through In 2012, Florida sought to institute a database matching procedure September 2008. Mr. Morales was forced to travel 30 minutes to prove his citizenship. minutes to prove to travel 30 Morales was forced Mr. September 2008. Cherokee County election officials over the course of several weeks after his registration in registration weeks after his over the course of several County election officials Cherokee Georgia filed a lawsuit seeking preclearance from the federal court in Washington D.C. After Washington D.C. After federal court in the from Georgia filed a lawsuit seeking preclearance flawed system frequently subjects a disproportionate number of African-American, Asian, subjects a disproportionate flawed system frequently The 45 Due to 49 On the federal 53 51 A second lawsuit was filed A second lawsuit The implementation of this The implementation 44 43 Florida has continued its voter 46

The American Civil Liberties Union 52 48 Litigation over the purge process, however, is however, Litigation over the purge process, 50

47 have permitted the Secretary of State to cross-reference Iowa’s voter rolls with state and voter rolls Iowa’s of State to cross-reference have permitted the Secretary purges be completed at least 90 days before any federal election, and, in 2014, a federal any federal election, and, in 2014, at least 90 days before purges be completed maintenance procedure that relied on a Department of Homeland Security database known on a Department of Homeland that relied maintenance procedure purge efforts, but additional problems with the information used for matching have forced used for matching have forced with the information purge efforts, but additional problems ments for proving U.S. citizenship have been passed in several states. A challenge to one ments for proving relied upon, and the effect on voter registration among naturalized citizens. The Director of citizens. The Director registration among naturalized upon, and the effect on voter relied eligible U.S. new, and that many rolls Latino voters from of registered in the removal result in March 2014 in favor of the plaintiffs’ motion for summary judgment. in March implementation of these rules just before the 2012 election, and the Secretary of State the Secretary the 2012 election, and implementation of these rules just before - to vote to heightened require During the last decade, laws subjecting individuals registering Court. Since 2004, four states—Arizona, decided by the U.S. Supreme such law was recently LULAC of Iowa testified that his members were concerned that the State’s program would program concerned that the State’s were LULAC of Iowa testified that his members as the Systematic Alien Verification for Entitlements Program (SAVE). SAVE provides informa- provides SAVE (SAVE). Entitlements Program for Alien Verification as the Systematic after that decision, plaintiffs voluntarily dismissed the lawsuit. after that decision, plaintiffs voluntarily and Kansas have actually implemented their laws to date). cross-check was challenged as a violation of the NVRA’s requirement that such systematic requirement as a violation of the NVRA’s was challenged cross-check that Florida had violated the requirement. court of appeals held continuing. The case remains on appeal to the Iowa Supreme Court after a lower court ruled on appeal to the Iowa Supreme continuing. The case remains challenging Florida’s failure to submit both purge programs for Section 5 preclearance. for Section to submit both purge programs failure challenging Florida’s challenges) has yet to be implemented: plaintiffs obtained a temporary injunction against challenges) has yet to be implemented: Shelby County v. Holder, and decision in Shelby County v. Court’s case was stayed pending the Supreme further delays. if voter rolls the from them noncitizens and remove federal databases to identify suspected court. The two groups provided evidence of inaccuracy in the citizenship information being provided court. The two groups to vote in Iowa. even registering from deterred citizens with Latino names would be - but may not be an accurate indica eligibility for public benefits, to an individual’s tion related citizenship status or voting eligibility. current tor of the person’s the plaintiffs’ efforts, this purge program (as well as a rule expanding the grounds for voter grounds expanding the program (as well as a rule the plaintiffs’ efforts, this purge they failed to provide proof of citizenship within 14 days. proof they failed to provide tion form (commonly called the “federal form”), provided for by the NVRA. tion form (commonly called the “federal form”), provided Iowa also sought to implement a similar program in 2012, through a regulation that would a regulation through in 2012, program Iowa also sought to implement a similar - using the federal mail-in registra states must allow individuals to register Under federal law, voluntarily rescinded the voter challenge rule. voluntarily rescinded Shortly before the November 2012 election, the State sought to implement a different list list to implement a different the State sought 2012 election, the November Shortly before (ACLU) of Iowa and the League of United Latin American Citizens (LULAC) sued in state (ACLU) of Iowa and the League of United Georgia, Kansas, and Alabama—have passed proof-of-citizenship laws (though only Arizona Georgia, Kansas, and Alabama—have passed proof-of-citizenship Proof of Citizenship for Voter RegistrationProof of Citizenship

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NATIONAL COMMISSION ON VOTING RIGHTS 144 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 145 - The uniform federal mail-in The uniform federal Arizona v. ITCA 55 The Court considered whether Arizona could reject voter whether Arizona could reject The Court considered 56 A primary purpose of the NVRA is to increase citizen participation by making voter citizen participation by making of the NVRA is to increase A primary purpose 54 nity registration drives discussed above, laws heightening requirements for voter registration for voter registration heightening requirements drives discussed above, laws nity registration below, available information shows that it is rare for noncitizens to attempt to register to vote, to vote, to register for noncitizens to attempt available information shows that it is rare below, proof of citizenship for voter registration can pose particularly troubling barriers to minority barriers to minority can pose particularly troubling of citizenship for voter registration proof registration practices for federal elections simple and uniform. practices for federal registration perjury. ports that goal. Proponents of such laws contend that requiring additional layers of proof from applicants from proof additional layers of of such laws contend that requiring Proponents Required documentation may include naturalization certificates, copies of passports, or certi documentation may include naturalization Required use their own mail-in registration forms. Those with proof-of-citizenship laws typically require laws typically require forms. Those with proof-of-citizenship registration use their own mail-in the simple affirmation of citizenship. additional documentation beyond applicants to submit either mistakenly or knowingly. either mistakenly or knowingly. groups—to obtain, copy, and submit with their applications. Like the limitations on commu- and submit obtain, copy, groups—to documentary Requiring the political process. potential voters at their entry point into confront form, a registrant proves his U.S. citizenship by an affirmation made under penalty of affirmation made citizenship by an his U.S. proves form, a registrant form—which Congress intended to be easily used for community registration drives—sup- to be easily used for community registration intended form—which Congress will help prevent noncitizens from registering to vote and casting ballots. But, as discussed to vote and casting ballots. But, registering noncitizens from will help prevent In addition to the federal form, which states must accept and use, states may develop and and use, states may develop and form, which states must accept In addition to the federal voter participation. The Supreme Court Rules on Proof of Citizenship in The Supreme Court Rules on Proof fied birth certificates, all of which can be difficult for registrants—including those from minority registrants—including those be difficult for fied birth certificates, all of which can John R. Lewis, Executive Director of the Inter Tribal Council of Arizona, Inc., and guest commissioner, received received Council of Arizona, Inc., and guest commissioner, of the Inter Tribal John R. Lewis, Executive Director MIKE ELLER (HMA PUBLIC RELATIONS) testimony at the NCVR Arizona state hearing. PHOTO CREDIT: Arizona’s proof-of-citizenship law. proof-of-citizenship Arizona’s decision, the Supreme Court weighed in on the 2013 Shelby County decision, the Supreme The week before

- 59 The result is that, The result 57 decision “has given us the Kobach decision “has given us the Elections officials’ experiences from Elections officials’ experiences 62

60 Arizona v. ITCA Kobach v. EAC, joining the EAC intervened in the case, Kobach v. Civil rights groups

58 61 law has been inactive since its passage in 2008, respondents to a 2009 Brennan Center to a 2009 Brennan law has been inactive since its passage in 2008, respondents law, and the Court ruled that the State was in violation of the NVRA for attempting to add its State was in violation of the NVRA for and the Court ruled that the law, - require to add their documentary proof-of-citizenship nying the Arizona and Kansas requests of all registration small” percentage an “exceedingly event, representing a rare noncitizens are ments to the federal form, the EAC determined that the federal form already includes ample ments to the federal form, the EAC determined that the federal form already registration applications submitted on the federal form that were not accompanied by the by the not accompanied that were the federal form submitted on applications registration it does occur, results from mistake, not fraud: “Of the elections officials who were interviewed, mistake, not fraud: “Of the elections officials who were from results it does occur, safeguards against noncitizens registering, and the EAC also determined that registrations by and the EAC also determined that registrations against noncitizens registering, safeguards survey of elections officials reported that noncitizen registration is rare and, to the extent that registration is rare reported that noncitizen survey of elections officials announced plans to move forward with implementation of its proof-of-citizenship law. law. of its proof-of-citizenship with implementation announced plans to move forward applicants (less than one-hundredth of one percent). applicants (less than one-hundredth as defendants. In March 2014, the district court in Kansas ruled for the two states, requiring 2014, the district court in Kansas ruled for the two states, requiring as defendants. In March Following the Supreme Court’s ruling, Arizona and Kansas petitioned the EAC to amend the ruling, Court’s Following the Supreme additional evidence of citizenship required by the State for its own form. Plaintiffs in Arizona by the of citizenship required additional evidence submitted on the to applications requirements proof-of-citizenship additional documentary confidence that Alabama has strong footing for implementation of the rules regarding proof proof regarding for implementation of the rules footing confidence that Alabama has strong of citizenship…” , it is important to consider the limited benefits and high costs of such laws. cision in Kobach, it is important to consider the limited benefits and high costs of such laws. other states have been in line with EAC’s findings. In Georgia, where the proof-of-citizenship the proof-of-citizenship findings. In Georgia, where other states have been in line with EAC’s - accept otherwise-complete applica to elections, Arizona is required for purposes of federal out additional proof. federal form without the approval of the Election Assistance Commission (EAC), the agency Election Assistance Commission (EAC), of the the approval federal form without the EAC to permit their heightened proof requirements to apply for federal form registration. requirements the EAC to permit their heightened proof tions submitted using the federal form that contain the simple attestation of citizenship—with the federal form that contain the tions submitted using law. proof-of-citizenship to incorporate each state’s federal form, as used in those states, to apply to requirements proof it to permit their heightened court in Kansas seeking to force successfully argued that the NVRA preempted Arizona’s Arizona’s that the NVRA preempted of Arizona successfully argued Council Inter Tribal v. the federal form. which a decision is expected in the fall of 2014. which a decision is expected in the fall designated to monitor NVRA compliance and maintain the federal form. NVRA compliance and maintain designated to monitor Within days of the district court’s ruling in favor of Arizona and Kansas, Alabama officials favor of Arizona and Kansas, Alabama officials ruling in Within court’s days of the district The Aftermath of Alabama Secretary of State Jim Bennett stated that the of State Jim Bennett stated Alabama Secretary As states with proof-of-citizenship laws on their books anxiously await the Tenth Circuit’s de- Circuit’s laws on their books anxiously await the Tenth As states with proof-of-citizenship The existing safeguards against noncitizen registration are highly effective. In its decision de- highly effective. In its are against noncitizen registration The existing safeguards The decision has been stayed pending an appeal to the Tenth Circuit Court of Appeals, from Court of Appeals, from Circuit an appeal to the Tenth The decision has been stayed pending Their requests were denied in January 2014, and the two states sued the EAC in federal denied were Their requests

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64 Further, a Supreme Court amicus a Supreme Further, 63

66 Further, a proof-of-citizenship requirement may decrease participa- may decrease requirement a proof-of-citizenship Further, 65 danger of noncitizen registration and voting does not justify the imposition of registration and voting does danger of noncitizen significant new barriers to registration by eligible individuals. significant new barriers to registration nonissue.” elections, amici have experienced almost no cases of noncitizens registering to have experienced almost no cases amici elections, vote, let alone actually casting a ballot. In light of this, amici’s view is that the view is that amici’s In light of this, let alone actually casting a ballot. vote, votes in Florida. Take it from an organization that dedicates all of its resources it from an organization that dedicates Take votes in Florida. trying to get eligible Latinos to the polls. Voter fraud from non-citizens is a Voter trying to get eligible Latinos to the polls. [I]n the more than 150 years that they have collectively spent administering 150 years that they have collectively [I]n the more than Ana Della Rosa, Mi Familia Vota Educational Fund, at the NCVR Florida state hearing Ana Della Rosa, Mi Familia Vota “There is not an epidemic of non-citizens yearning to stand in long lines to cast “There is not an epidemic of non-citizens yearning to stand in long noncitizens had fraudulently registered to vote or voted.” to vote or registered noncitizens had fraudulently herein, as well as the evidence revealed during litigation about the Arizona and Kansas laws, as well as the evidence revealed herein, missing documents. proof-of-citizenship laws risk closing new voters out of the political process. These additional These out of the political process. laws risk closing new voters proof-of-citizenship potential to have the same effect on minority voters as have the requirements registration representing counties that comprised 40 percent of Georgia’s population, none believed that none believed population, of Georgia’s comprised 40 percent counties that representing strict photo ID laws, discussed later in this chapter. Minorities may be less likely to possess in this chapter. strict photo ID laws, discussed later suggests that their heightened requirements for registration are similarly unnecessary and are for registration suggests that their heightened requirements a greater extent than whites—because potential voters may not carry on their person the extent than whites—because potential a greater curiae brief submitted by current and former state and local elections administrators in state and local elections administrators and former by current curiae brief submitted overly burdensome for minority voters. overly burdensome tion in community registration drives—which, as discussed earlier, minorities rely upon to minorities rely drives—which, as discussed earlier, tion in community registration the required documentation, such as birth certificates, or to have the resources to obtain resources such as birth certificates, or to have the documentation, the required In addition to being an unnecessary response to an exceedingly rare problem, documentary documentary problem, rare to an exceedingly response In addition to being an unnecessary documentation needed to register. While Alabama and Georgia have not implemented their laws yet, the evidence discussed While Alabama and Georgia have not echoed the survey findings: ITCA echoed the survey Arizona v.

68 Without the 69 Agency employees were to rely solely upon citizenship information con- solely rely to were Agency employees 67 jection to a Texas law that barred employees of public assistance agencies from offering voter offering of public assistance agencies from employees law that barred jection to a Texas population, and that two-thirds of new citizens in 1993 and 1994 were Hispanic or Asian. in 1993 and 1994 were of new citizens population, and that two-thirds registration for large numbers of minority public assistance clients. As seen in Texas and assistance clients. As seen in Texas for large numbers of minority public registration focused on citizenship verification in Arizona, the potential of voting practices recently more registration to clients, as required by Section 7 of the NVRA, until they first determined the 7 of the NVRA, until they first determined by Section to clients, as required registration ing numbers of new citizens in Texas during the relevant period. 1990 census figures indicated 1990 census figures period. during the relevant ing numbers of new citizens in Texas ing them with no opportunity to update or correct citizenship information in their files. DOJ or correct ing them with no opportunity to update DOJ found that Texas’ procedure lacked safeguards to ensure that agency information was that agency to ensure lacked safeguards procedure DOJ found that Texas’ Section Safeguarding 5 at Work: Registration Voter at client’s citizenship. client’s current and accurate. Under the procedures at issue, clients would not be informed that at issue, clients would not be and accurate. Under the procedures current that minorities were 34 percent of the State’s population and 30 percent of its voting age of its voting population and 30 percent of the State’s 34 percent that minorities were tained in agency files, which DOJ determined were unlikely to remain up-to-date, given the ris- remain up-to-date, unlikely to which DOJ determined were tained in agency files, to most heavily burden minority voters remains a serious concern. minority voters remains to most heavily burden the reason they were not offered voter registration was their alleged noncitizen status, leav- registration was their alleged noncitizen status, voter offered not they were the reason Public Assistance Agencies Public determined that this flaw was likely to disproportionately affect minorities. disproportionately determined that this flaw was likely to Section 5 review process, Texas’ procedures could have foreclosed the opportunity for voter could have foreclosed procedures Texas’ process, Section 5 review Case SpotlightCase PHOTO CREDIT: Wikimedia Commons/Public Domain PHOTO CREDIT: A separate proof-of-citizenship issue arose in Texas in 1996. DOJ interposed a Section 5 ob- 1996. DOJ interposed a Section 5 in in Texas issue arose A separate proof-of-citizenship

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NATIONAL COMMISSION ON VOTING RIGHTS 148 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 149 - - oportion e a federal elec- Despite these safeguards, however, however, Despite these safeguards, 71 Given the razor-thin margins of the 2000 presidential margins of the 2000 presidential Given the razor-thin 73 The NVRA also requires that certain registered voters who have moved, but who have voters who have moved, but who have that certain registered The NVRA also requires The State also included as disenfranchised felons, for instance, individuals convicted in The State also included as disenfranchised felons, for instance, individuals 70 72 list from the Florida Department of Law Enforcement. One indicator of the list’s inaccuracy One indicator of the list’s Florida Department of Law Enforcement. the list from had their voting rights African American, and thousands of those listed had already list were not disenfranchised under Florida law. not updated their registration, still be allowed to vote. not updated their registration, not eligible to vote in the relevant jurisdiction, and is an important part of maintaining the ef- jurisdiction, and is an important part in the relevant not eligible to vote numerous disputes have arisen surrounding voter purges in recent years. voter purges in recent disputes have arisen surrounding numerous rate. prohibiting a voter from being removed from the rolls solely for failure to vote; (3) mandating to solely for failure the rolls from being removed a voter from prohibiting be deemed ineligible due to relocation, death, conviction for a disfranchising crime, ineligibility death, conviction for a disfranchising due to relocation, be deemed ineligible monumental national impact. ized information about specific voters) be completed at least 90 days befor ized information about specific voters) safeguards for purging registration lists, including: (1) requiring list maintenance procedures list maintenance procedures lists, including: (1) requiring purging registration for safeguards Hispanic as a racial category and one that did not. Nearly half of the people on the flawed Hispanic as a racial category and one that did not. Nearly half of the people another state who had regained their right to vote before moving to Florida, where they were they were moving to Florida, where their right to vote before another state who had regained address to ensure that the change-of-address information received by the registrar is accu- by the registrar information received change-of-address that the to ensure address at the time of registration (such as noncitizenship), or other reasons. noncitizenship), or other reasons. (such as at the time of registration als. ately. Two examples have been seen recently in Florida. in Florida. examples have been seen recently Two ately. franchisement of eligible voters. Thus, Congress, through the NVRA, enacted a variety of through Congress, franchisement of eligible voters. Thus, fectiveness and integrity of election administration. In conformity with federal law, voters may with federal law, of election administration. In conformity fectiveness and integrity contest in Florida, these improper purges and the confusion they caused may have had a contest in Florida, these improper execute voter purges, and these have also sometimes affected minority voters dispr execute voter purges, and these have overstate the number of matches between the registration list and lists of convicted individu- list and overstate the number of matches between the registration felony convictions. A vice president of the company that generated the list later testified that felony convictions. A vice president tion; and (4) directing that notice be provided to registrants removed based on a change of removed to registrants that notice be provided tion; and (4) directing to be “uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965”; (2) and in compliance with the Voting to be “uniform, nondiscriminatory, on particular (i.e., one that is not based registrants to remove that any systematic program the Florida Division of Elections had deliberately chosen a matching technique that would the Florida Division of Elections had deliberately chosen a matching technique was that it employed race as an identifying attribute but relied on one database that included on was that it employed race as an identifying attribute but relied were African Americans, based on a flawed comparison of voter registration files to lists of Americans, based on a flawed comparison of voter African were - and disen removal in the improper also result purges can however, If done incorrectly, In 2004, Florida planned to remove 48,000 suspected felons from its voter rolls based on a its voter rolls 48,000 suspected felons from In 2004, Florida planned to remove In addition to citizenship-matching (discussed above), other systematic methods are used to above), other systematic methods are In addition to citizenship-matching (discussed In 2000, Florida improperly purged thousands of voters, a disproportionate number of whom number purged thousands of voters, a disproportionate In 2000, Florida improperly V. VOTER PURGES V. The maintenance (or purging) of voter registration lists involves removing registrants who are who are registrants lists involves removing purging) of voter registration The maintenance (or

Laws barring citizens with prior felony convictions from voting, some- convictions from Laws barring citizens with prior felony 74 75 locally generated lists. rejected finding such laws unconstitutional or in violation of the VRA. finding such laws unconstitutional or rejected restored under state law. Though the State abandoned this purge under pressure from voting from under pressure this purge the State abandoned Though under state law. restored on retain the ability to purge voters based in Florida county election officials rights groups, states make it extremely difficult for a person with certain kinds of prior felony convictions to difficult for a person with certain kinds of prior felony convictions states make it extremely four states—Florida, Iowa, Kentucky, and Virginia—permanently all persons disenfranchise four states—Florida, Iowa, Kentucky, convicted of a felony. times for a lifetime, impact minority voters at a far higher rate than whites. Yet courts have courts at a far higher rate than whites. Yet times for a lifetime, impact minority voters with a felony conviction absent executive action. with a felony conviction absent executive with felony convictions through the end of their terms of probation and/or parole. A few A few and/or parole. the end of their terms of probation with felony convictions through Source: http://www.sentencingproject.org/template/page.cfm?id=133 Source: vote again, leaving the restoration of such rights up to the discretion of the executive. Finally, Finally, of the executive. of such rights up to the discretion vote again, leaving the restoration Over 5 million Americans are banned from voting because they have at some point been because they have at some point been voting from banned are Over 5 million Americans Vermont—allow persons in prison to vote. Most other states deny voting rights to persons persons in prison to vote. Most other Vermont—allow VI. FELONY DISENFRANCHISEMENT FELONY DISENFRANCHISEMENT VI. The rules around felony disenfranchisement vary widely by state. Two states—Maine and states—Maine and felony disenfranchisement vary widely by state. Two The rules around

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Amendment’ 78 ebellion, or other crime.” Using ebellion, or other crime.” three men from California who had already completed their sen- completed California already who had men from three 76 in distinguishing such laws from those other state limitations on the franchise in distinguishing such laws from Fourteenth Amendment, a sanction which was not present in the case of the Amendment, Fourteenth of those hold that the understanding other restrictions on the franchise…We interpretation of the of § 2 and in the historical and judicial applicability to state laws disenfranchising felons, is of controlling significance felons, applicability to state laws disenfranchising who adopted the Fourteenth Amendment, as reflected in the express language as reflected in the Amendment, who adopted the Fourteenth which have been held invalid under the Equal Protection Clause by this Court. which have been held invalid under the exclusion of felons from the vote has an affirmative sanction in § 2 of the of felons from the vote has an the exclusion lenge to a felony disenfranchisement law; however, even that has not always been sufficient. even that has not law; however, lenge to a felony disenfranchisement largely due to the Supreme Court’s interpretation of Section 2 of the 14th Amendment. In of Section 2 of the interpretation Court’s largely due to the Supreme lions of Americans without voting rights. Moreover, those laws have had particularly dramatic lions of Americans without voting rights. Moreover, ment laws under the discriminatory results standard of Section 2 of the VRA, as discussed standard ment laws under the discriminatory results hand, may allow for a successful chal Evidence of discriminatory intent, on the other below. Felony disenfranchisement laws, and courts’ reluctance to strike them down, have led to mil- to strike Felony disenfranchisement laws, and courts’ reluctance Largely as a result of this decision, courts have rejected challenges to felony disenfranchise- of this decision, courts have rejected Largely as a result Richardson v. Ramirez, v. Richardson effects on minority citizens’ ability to participate in elections. tences sued for the right to vote, arguing the State’s felony disenfranchisement law violated disenfranchisement law violated felony right to vote, arguing the State’s tences sued for the fundamental right to 14th Amendment by denying their Clause of the the Equal Protection that clause, the Court determined that that clause, the Court which allows the denial of voting rights “for participation in r of voting rights “for participation which allows the denial disenfranchising individuals convicted of a crime of “moral turpitude.” disenfranchising individuals convicted vote. The Court rejected this argument, and looked to Section 2 of the 14th Amendment, and looked to Section 2 of the this argument, vote. The Court rejected Supreme Court held unconstitutional a provision in the State of Alabama’s 1901 constitution in the State of Alabama’s Court held unconstitutional a provision Supreme The Racially Disproportionate Effect of FelonyThe Racially Disproportionate Disenfranchisement Hunter v. Underwood, in which the was Hunter v. this regard The only case that was successful in The difficulty in bringing successful legal challenges to felony disenfranchisement laws is to felony disenfranchisement legal challenges in bringing successful The difficulty The statistics show the dramatic effect of felony disenfranchisement laws on racial minorities: The statistics show the dramatic effect of felony disenfranchisement laws , s law

about 2.4 81

80

79 incarceration trends hold, 17% of Hispanic men will be incarcerated during incarceration trends hold, impact individuals of Hispanic origin and others. Hispanics are incarcerated Hispanics and others. impact individuals of Hispanic origin rates than non-Hispanics: in state and federal prisons at higher disparate impact on African Americans and other minority groups. At present, At present, minority groups. Americans and other African on disparate impact greater than the non-African-American This rate is four times disenfranchised. disproportionate rates. disenfranchisement rates of other groups is extremely limited, but the available groups is extremely limited, disenfranchisement rates of other data suggests felony disenfranchisement laws may also disproportionately population rate of 1.8%. In three states, at least one out of every five African- at least one out of every five In three states, 1.8%. population rate of are likely to be barred from voting under felonyare likely to be barred from voting disenfranchisement laws at on the basis of involvement with the criminal justice system, more than 40% system, with the criminal justice on the basis of involvement Information on the the terms of their sentences. of whom have completed times greater for Hispanic men and 1.5 times for Hispanic women. If current 1.5 times for Hispanic women. times greater for Hispanic men and Given than 6% of non-Hispanic white men. in contrast to less their lifetimes, to assume that individuals of Hispanic origin it is reasonable these disparities, Virginia (20%). Nationwide, 2.2 million African-Americans are disenfranchised African-Americans are disenfranchised 2.2 million Nationwide, Virginia (20%). American adults is disenfranchised: Florida (23%), Kentucky (22%), and Kentucky (22%), Florida (23%), is disenfranchised: American adults 7.7% of the adult African-American population, or one out of every thirteen, is or one out of every thirteen, African-American population, 7.7% of the adult There is clear evidence that state felony evidence a laws have disenfranchisement clear There is in which evidence was presented that the law had originally been enacted in 1868 with a in which evidence was presented class of Americans, mostly minority, who are deprived of the most fundamental right, the right who are class of Americans, mostly minority, enfranchised African-American population. to vote. Moreover, scholarly research indicates that in the post-Civil War years, several felony the post-Civil War indicates that in scholarly research to vote. Moreover, which permanently bans persons currently or formerly incarcerated for felonies, violates the or formerly incarcerated which permanently bans persons currently 525,000 disenfranchised Florida citizens, in which the plaintiffs claimed that Florida’ 525,000 disenfranchised Florida citizens, in which the plaintiffs claimed that disenfranchisement law in the State. Florida’s first constitution of 1838 authorized felony disenfranchisement law in the State. Florida’s enacted such a law. legislature disenfranchisement laws, and in 1845 Florida’s disenfranchisement laws were enacted with the aim of limiting the voting rights of the newly enacted with the aim of limiting disenfranchisement laws were disenfranchisement laws of various states. a class action of discriminatory purpose, and yet was nonetheless upheld. This case was The Lack of Judicial Receptivity to Challenges to Felony Receptivity The Lack of Judicial Disenfranchisement Claims Disenfranchisement As noted above, there have been a number of different legal efforts to challenge the felony have been a number of different As noted above, there , ultimately decided in 2005, provides an example of a case Governor of Florida, ultimately decided in 2005, provides Johnson v. The plaintiffs showed that the historical record demonstrated the racial origins of the felony record The plaintiffs showed that the historical This means that, as a result of felony disenfranchisement, there is a structurally imposed sub- is a structurally of felony disenfranchisement, there This means that, as a result 14th and 15th Amendments of the Constitution and Section 2 of the VRA.

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NATIONAL COMMISSION ON VOTING RIGHTS 152 Tanya Fogle, a member of Kentuckians for the Commonwealth, testified about the lengthy process and difficulty she experienced regaining her right to vote following a felony conviction. (NCVR Nashville regional hearing) PHOTO CREDIT: JOSEPH GRANT

It was just after the Civil War, in 1868, when all states were required to amend their con- stitutions to comply with the new suffrage requirements, that Florida held a constitutional convention and included mandatory disenfranchisement of all persons with felony con- victions in the state constitution. It also added the specific crime of larceny to the list of disenfranchising crimes, which would greatly increase the number of affected citizens. As the plaintiffs explained:

The broad disenfranchisement of every convicted felon in Florida’s 1868 Constitution and the addition of larceny as a disenfranchising crime were enacted with the intention of restricting the voting rights of Florida’s newly freed black population. White Floridians were strongly opposed to black suffrage after the Civil War. Blacks were finally given the right to vote in the 1868 Constitution so that Florida could gain readmission to the Union. However, the 1868 Constitution contained several measures in addition to the felon and specific crime disenfranchisement provisions that were adopted to limit the power of black votes. Further measures to restrict black suffrage were adopted as part of the 1885 Constitution. The discriminatory intent behind the disenfranchisement provisions is demonstrated by the history of the 1865, 1868, and 1885 Constitutions as well as Florida’s use of criminal laws to control former slaves and create a low-wage labor force to replace that lost by the abolishment of slavery.82 - - - e-

88 The Supreme The Supreme When chal- 86 83 ove a constitution Ultimately, the case was ar the case Ultimately, - ) the felony disenfranchise 89 85

87 Nevertheless, in a ruling of the entire Eleventh Circuit en banc, Circuit Eleventh ruling of the entire Nevertheless, in a 84

90 lenged in 2000, the district court found, even in awarding summary judgment to the defen- summary judgment to the district court found, even in awarding lenged in 2000, the judgment for the State, and several rounds of appeals followed. judgment for the State, and several rounds historical evidence of the original discriminatory intent was insufficient to pr historical evidence of the original discriminatory provision requiring disenfranchisement of all convicted felons was left intact. disenfranchisement requiring provision ment provision was upheld and ruled not to run afoul of the Equal Protection Clause or Clause afoul of the Equal Protection was upheld and ruled not to run ment provision in stating that felony Richardson decision in Court’s test, the court cited the Supreme results keeping blacks from voting.” keeping blacks from in 1868, there was no evidence of racial motivation in the drafting of the 1968 version, so the was no evidence of racial motivation in 1868, there Ninth Circuit. The en banc court subsequently upheld the felony disenfranchisement law. It It The en banc court subsequently upheld the felony disenfranchisement law. Ninth Circuit. stated that only intent claims could be made against felony disenfranchisement laws, holding stated that only intent claims could be made against felony disenfranchisement system is infected by intentional discrimination or that the felon disenfranchisement law was Plaintiffs argued that the discriminatory impact of the felony disenfranchisement law was a r Plaintiffs argued that the discriminatory impact of the felony disenfranchisement the criminal justice system, using extensive data to demonstrate sult of racial bias throughout al violation. While acknowledging that typically Section 2 cases are subject to a discriminatory typically Section 2 cases are al violation. While acknowledging that to deny the vote discretion Florida’s criminal law.… a punitive device stemming from and are gued before an en banc panel of eleven judges in the United States Court of Appeals for the gued before enacted with such intent.” overturning the decision of a three-judge panel of the same court (which had reversed the the had reversed panel of the same court (which overturningdecision of a three-judge the of Washington’s felony disenfranchisement law under the VRA’s Section 2 results test. Section 2 results felony disenfranchisement law under the VRA’s of Washington’s chised 1,541,602 citizens due to a felony conviction. This amounts to the disenfranchisement chised 1,541,602 citizens due to a felony African- of Florida’s age population and 23.3 percent voting of the State’s of 10.4 percent that “plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on that “plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement show that the criminal justice criminal justice system must at least the operation of a state’s to convicted felons is fixed by the text of § 2 of the Fourteenth Amendment.” to convicted felons is fixed by the text tion, unless they receive discretionary executive clemency. As of 2010, Florida had disenfran- executive clemency. discretionary tion, unless they receive the historical background of Florida’s felon disenfranchisement scheme as historical evidence scheme as historical evidence felon disenfranchisement of Florida’s the historical background particular discriminatory purpose of enacted originally in 1868 with the that the policy was , several minorities with felony convictions challenged the State Gregoire In Farrakhan v. disenfranchisement laws are distinct because they “are deeply rooted in this Nation’s history in this Nation’s deeply rooted distinct because they “are disenfranchisement laws are district court’s summary judgment ruling on the Section 2 claim summary judgment ruling on district court’s discrimination in all stages of the criminal process. The federal district court granted summary The federal district discrimination in all stages of the criminal process. dants, that “Plaintiffs have presented to this Court an abundance of expert testimony about this Court an abundance of expert to have presented dants, that “Plaintiffs When the 1968 Florida Constitution was drafted, the larceny provision was removed, but the was removed, provision the larceny was drafted, 1968 Florida Constitution When the Section 2. The en banc court found that, even if there was racial animus behind the provision was racial animus behind the provision that, even if there Section 2. The en banc court found Court denied certiorari. As a result, to this day Florida permanently disenfranchises all individuals with a felony convic to this day Florida permanently disenfranchises As a result, American voting age population.

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NATIONAL COMMISSION ON VOTING RIGHTS 154 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 155 - - - The Kentucky Advisory 95

99 At least 20 percent of adult African Americans in At least 20 percent 91 —at 22 percent, Kentucky has the second highest rate of voter —at 22 percent, A July 2013 executive order from Governor Bob McDonnell from A July 2013 executive order 98 92 Thus, it is estimated that 243,842 residents in the State of Kentucky Thus, it is estimated that 243,842 residents 96 The Kentucky Advisory Committee reports that those disenfranchised are that those disenfranchised are The Kentucky Advisory Committee reports 97

94 According to testimony the National Commission on Voting Rights (NCVR) heard Rights (NCVR) heard on Voting to testimony the National Commission According 93 numbers of African Americans banned from voting in these states is remarkable. The follow- voting in these states is remarkable. from numbers of African Americans banned now allows individuals convicted of certain non-violent felonies to apply to restore their voting non-violent felonies to apply to restore now allows individuals convicted of certain persons convicted of a felony is established under the state constitution, and rights may persons convicted of a felony is established rights. in 2005 one of four voting age African Americans were disenfranchised under Iowa’s lifetime under Iowa’s disenfranchised in 2005 one of four voting age African Americans were ing are a few examples: ing are statute, or regulation. sible—to regain voting rights, a great number of individuals have been disenfranchised. The individuals have been disenfranchised. number of a great voting rights, sible—to regain , and given the difficulty plaintiffs face in bringing inten- face in bringing the difficulty plaintiffs , and given the decision in Farrakhan Following at its Virginia hearing, an estimated 350,000 Virginians are disenfranchised because of the at its Virginia hearing, an estimated 350,000 Virginians are a new governor rescinded the policy and reinstated the process of individual review, under of individual review, the process the policy and reinstated a new governor rescinded clemency. In 2000, the Fourth Circuit rejected a challenge under the VRA to Virginia’s felony a challenge under the VRA to Virginia’s rejected In 2000, the Fourth Circuit clemency. only be restored through an executive pardon by the Governor. by an executive pardon through only be restored full sentences. order automatically restoring the rights of formerly incarcerated persons. In 2011, however, however, persons. In 2011, the rights of formerly incarcerated restoring automatically order franchisement laws for now. franchisement laws it the most difficult—or nearly impos by state. In the states that make convictions vary widely they have completed their sentences. The authority for Kentucky’s lifetime voting ban for lifetime voting The authority for Kentucky’s they have completed their sentences. was the result of racially discriminatory intent or that there was “any nexus” between the was “any nexus” between racially discriminatory intent or that there of was the result tional discrimination claims, advocates have abandoned federal challenges to felony disen claims, advocates have abandoned tional discrimination were barred from voting in 2010, including approximately 181,000 who had completed their voting in 2010, including approximately from barred were disenfranchisement law, holding that the plaintiff had failed to demonstrate that the law disenfranchisement law, disenfranchisement of felons and race. disenfranchisement among African Americans in the country. disproportionately minorities disproportionately doning process varies depending on Administration and is not subject to any established law, varies depending on Administration and is not subject to any established law, doning process voting ban for individuals with felony convictions. That year, the governor issued an executive voting ban for individuals with felony convictions. That year, Similarly, Kentucky permanently disenfranchises formerly incarcerated citizens, even after incarcerated Kentucky permanently disenfranchises formerly Similarly, State’s law. State’s Committee to the U.S. Commission on Civil Rights (USCCR) notes, however, that the par Committee to the U.S. Commission on Civil Rights (USCCR) notes, however, Virginia permanently disenfranchises all persons with felony convictions unless they receive Virginia all persons with felony convictions unless they receive permanently disenfranchises Virginia are disenfranchised. Virginia are The Effect of Felony Disenfranchisement Laws in Particular States Particular in Laws Disenfranchisement Felony of Effect The According to testimony submitted by the ACLU of Iowa at the NCVR’s Kansas City hearing, to testimony submitted by the ACLU of Iowa at the NCVR’s According As discussed above, the rules around restoration of voting rights for persons with prior felony of voting rights for persons with prior restoration the rules around As discussed above, -

102 and with 103

104 Betty C. Andrews, President of the Iowa-Nebraska President Betty C. Andrews, of the National Association for State Conference People, testified the Advancement of Colored hearing at the NCVR Kansas City regional about the detrimental effect of the permanent disenfranchisement of individuals with criminal BRUCE convictions in Iowa. PHOTO CREDIT: COMMUNICATION) (MATHEWS MATHEWS - -

100 He further reported that in Tennessee, 341,815 people are disenfran 341,815 people are that in Tennessee, He further reported 101 last year only 40 people applied to have their last year only 40 people judges, election administrators and the individual convicted of a felony. There are currently no currently are There judges, election administrators and the individual convicted of a felony. heard testimony to this effect, for example, in South Carolina and California, to this effect, for example, in South Carolina testimony heard many persons with former felony convictions must address to regain their rights, which they to regain many persons with former felony convictions must address costs and be may or may not know how to navigate. The obstacles can include financial respect to Minnesota, where one witness cited the governor’s task force finding that “[n]o da- task force one witness cited the governor’s Minnesota, where to respect consistently followed” in Minnesota. notification procedures restoration of rights in Tennessee, one with one with of rights in Tennessee, restoration have successfully restored bation and parole port payments. As a result, according to Mr. to Mr. according port payments. As a result, ing in Nashville about Tennessee’s felony felony ing in Nashville about Tennessee’s information, or are misinformed by election officials who are unfamiliar with these laws. NCVR misinformed by election officials who information, or are a prior felony conviction must complete his his a prior felony conviction must complete recently, also be paid in full. In addition, as of on child sup a citizen must also be current apply to the governor’s office for restoration office for apply to the governor’s chised and that one out of every 5.25 African-American adults is disenfranchised. chised and that one out of every 5.25 extremely time consuming to overcome. extremely of Tennessee, testified at the NCVR hear of Tennessee, of rights. One requirement for restoration is for restoration of rights. One requirement tabase exists that can accurately identify when a felon regains the eligibility to vote, and that the tabase exists that can accurately identify when a felon regains among the public election significant confusion the question of disenfranchisement creates term, and all fines, fees, and restitution must restitution must term, and all fines, fees, and their voting rights.” - for re-regis about the process their voting rights and informing them they have reacquired with no such provided tering once they become eligible. In many instances these citizens are that the individual be up to date on paying that the individual - pro who have completed their sentences, which formerly incarcerated persons must persons must incarcerated which formerly disenfranchisement law. To be eligible for for be eligible To disenfranchisement law. voting rights restored. in Further Disenfranchisementin Once individuals are aware of the restoration process, there are the procedural obstacles obstacles the procedural are there process, of the restoration aware Once individuals are Castelli, “only 2% of disenfranchised citizens citizens Castelli, “only 2% of disenfranchised Confusion Regarding When and How Rights are Restored Results are Restored and How Rights When Regarding Confusion fines, fees, and restitution. As a result, in the restitution. As a fines, fees, and Another problem arises with respect to notifying persons with prior felony convictions that arises with respect Another problem Thomas Castelli, Legal Director of the ACLU of the ACLU Director Thomas Castelli, Legal

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NATIONAL COMMISSION ON VOTING RIGHTS 156 At the NCVR Nashville regional hearing, 74-year-old Teddy Smith Roglar stated that she could have been arrested for voting with a felony record in the state of Kentucky. PHOTO CREDIT: JOSEPH GRANT

The NCVR heard a number of poignant stories related to felony disenfranchisement through- out its proceedings. To provide just one example, at the Commission’s Florida hearing, Desmond Meade, president of the Florida Rights Restoration Coalition, told the NCVR the following:

Not too long ago, August of 2005, I remember standing in front of the railroad tracks in Miami waiting on a train to come so I could jump in front of it to commit suicide because at that time I was recently released from prison, I was addicted to drugs and alcohol, I was homeless and I saw no hope, no future. But by the grace of God the train never came and I crossed those tracks and I entered into the substance abuse treatment facility and after graduating there I went to Miami-Dade College while I was living in a homeless shelter. I enrolled in Miami-Dade College and I was able to complete the paralegal program there. One thing led to another and today I am happy to announce that I am a month away from graduating law school at Florida International University.

While I appreciate the applause, my story does not have a happy ending because I am among the over 1.54 million Floridians who cannot vote as a result of Florida’s policy on felony disenfranchisement. As it stands today an individual will have to wait five to seven years after completion of their sentence before being able to apply to have their rights restored. After they apply, there’s an application process in time of approximately six years.

We recently heard of a story of a gentleman who had been waiting ten years to find out the status of his application. And, therefore, we have a system or policy that would dictate that a person wait anywhere between 11 to 13 years before they see if they have a chance.105 Alternatively, in lieu of in lieu Alternatively, 106 107 require a form of ID, and even amongst those that did, a document provided by the election by the election a document provided a form of ID, and even amongst those that did, require providing a document, an individual would be able to vote after signing an affidavit attesting a document, an individual would be providing During the last decade, legislators, courts, and the public have grappled with questions legislators, courts, and the public During the last decade, that most, if not all, voters had ID requirements Prior to the 2000 election, states generally authority sufficed (as was the case in South Carolina and Texas). and in South Carolina authority sufficed (as was the case of whether, and if so what types of, ID should be required in order for a voter’s vote to be for a voter’s in order be required and if so what types of, ID should of whether, set of one of a limited voters to produce require laws—which restrictive counted. The more and two federal government-issued voters disproportionately, photo IDs—impact minority impact. these laws because of their racial courts have enjoined Most states did not voters simply attested to their identity. In most states, could satisfy. to his or her identity (as was the case in Louisiana). to his or her identity (as was the case registration card. Jones testified about the barriers to student voting, pointing out that Tennessee allows voters to pointing out that Jones testified about the barriers to student voting, card. registration PHOTO CREDIT: JOSEPH GRANT but not student IDs as an acceptable form of ID. PHOTO CREDIT: card, use their gun registration

Introduction Justin Jones, Chair of the Nashville Student Organizing Committee, holding up his student ID and voter Justin Jones, Chair of the Nashville Student Organizing VII. VOTER VOTER ID VII.

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NATIONAL COMMISSION ON VOTING RIGHTS 158 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 159 - - - Of the Of the 112 This is particularly This is particularly 113

111 Most recently, a federal judge pointed a federal judge pointed Most recently, 116

108

117 It is also quite telling that in virtually every lawsuit It is also quite telling that in virtually every lawsuit 114 Shortly thereafter, as discussed below, North Carolina North Carolina as discussed below, Shortly thereafter, 110 Within made the same announcement with a few days, Mississippi 109 , the Supreme Court decision Court decision , the Supreme Election Board Marion County v. Indeed, in Crawford 115 laws—commission of fraud by impersonating a voter—is practically nonexistent. laws, they have been unable to identify any actual examples of voter impersonation in their in their laws, they have been unable to identify any actual examples of voter impersonation ment investigations, the only form of fraud that would be addressed by voter identification by voter identification fraud that would be addressed ment investigations, the only form of range of acceptable identifying documents. range of acceptable respect to a similar requirement. respect passed legislation including stringent new voter ID requirements. passed legislation including stringent blocked under Section 5 (first by DOJ and then the federal district court). Alabama also an blocked under Section 5 (first by DOJ more fully below, these laws were challenged in both states, and the federal court decisions challenged in both states, these laws were fully below, more begin implementing its government-issuednounced on the same day that it would photo ID in New York in the nineteenth century and a single case of possible impersonation in the century and a single case of possible impersonation in the in the nineteenth in New York requirement for voting. requirement striking as we now know that U.S. attorneys were under enormous pressure to pursue to pursue striking as we now know that U.S. attorneys under enormous pressure were upholding Indiana’s voter identification law, Indiana admitted that it had not identified any that it had not identified any Indiana admitted voter identification law, upholding Indiana’s state. short list of government-issued photo IDs before their votes would be counted. As discussed their votes would be counted. short list of government-issued photo IDs before announced that it would immediately began to implement its voter ID bill that had been announced that it would immediately arising from the 2010 election resulted in seven states enacting photo ID bills during the 2010 election resulted the arising from examples of such voter fraud and Justice Stevens, in his plurality opinion, could only cite could only cite examples of such voter fraud and Justice Stevens, in his plurality opinion, few election fraud cases brought by DOJ between 2002 and 2005, none appears to be of by DOJ between 2002 and 2005, none appears to be of few election fraud cases brought two allegations of voter impersonation fraud from other states: the Boss Tweed regime regime other states: the Boss Tweed two allegations of voter impersonation fraud from out in a Wisconsin one instance of to provide ID case that the defendants had been unable fraudulent impersonation in the State. decision, Texas by Section 5 of the VRA. On the day of the Shelby County decision, Texas formerly covered combination of the Supreme Court’s decision upholding Indiana’s law and political changes law and political changes Indiana’s decision upholding Court’s Supreme combination of the these types of cases in the 2000s. the type that would have been addressed by a voter ID requirement. the type that would have been addressed that resulted have framed the parameters of subsequent voter ID laws and litigation. A parameters of subsequent voter ID have framed the that resulted where states have identified prevention of voter fraud as a justification for their voter ID of voter fraud as a justification for their voter have identified prevention states where ID requirement that applies only to first-time voters who register by mail and allows for a wide register voters who that applies only to first-time ID requirement In 2005, Georgia and Indiana became the first states to require voters to produce one of a voters to produce require Indiana became the first states to In 2005, Georgia and Washington State gubernatorial election of 2004. Washington vent fraud. However, as has been demonstrated in repeated academic studies and govern academic as has been demonstrated in repeated vent fraud. However, 2011-2012 legislative sessions. After the 2000 election, Congress passed the Help America Vote Act, which included a voter which included a Act, Vote the Help America passed 2000 election, Congress After the Justifications for ID Laws and Statistics Regarding ID Regarding and Statistics Laws for ID Justifications The primary justification given by proponents of ID laws is that they are necessary to pre of ID laws is that they are The primary justification given by proponents decision had an immediate impact on voter ID laws in states that were voter ID laws in states that were The Shelby County decision had an immediate impact on

124 The law 123 otests and estrict the types of A national survey by the Brennan Center found A national survey by the Brennan The law required that a voter provide one of that a voter provide The law required 120 122

121 They also contend that voter ID laws increase voter that voter ID laws increase They also contend 118 This unproven assertion ignores the likelihood that voter ID laws the likelihood that assertion ignores This unproven 119 lenged in court, and the outcomes have informed subsequent legislation and litigation around and litigation around lenged in court, and the outcomes have informed subsequent legislation have a government-issued photo ID. non-driver’s government and ID, African Americans, Latinos, immigrants, Native Americans, non-driver’s poll tax. ment-issued photo ID. While about 11 percent of Americans do not have a driver’s license or license do not have a driver’s of Americans percent ment-issued photo ID. While about 11 may cause some voters—particularly those that lack the required ID—to have less confi- required those that lack the may cause some voters—particularly issued photo ID, such as a driver’s license. issued photo ID, such as a driver’s six forms of government-issued ID: a Georgia driver’s license; a valid ID card issued by the valid ID card license; a six forms of government-issued ID: a Georgia driver’s study has shown that these groups are much less likely than whites to have government- much less likely than whites are study has shown that these groups employee photo ID card issued by the State of Georgia, by one of its subdivisions, or by the employee photo ID card fact that minority voters are overrepresented among those who lack ID. To many civil and among those who lack ID. To overrepresented fact that minority voters are earn more than $35,000, and that African Americans are more than three times as likely as times as likely than three more than $35,000, and that African Americans are earn more even though it cannot be proven. even though it cannot government-issued photo ID that would be required from voters. Both laws have been chal- from government-issued photo ID that would be required confidence in the electoral process because with ID laws in place, voters perceive that with ID laws in place, voters perceive because electoral process confidence in the that Americans earning less than $35,000 are twice as likely to lack ID as Americans who twice that Americans earning less than $35,000 are there will be less fraud. there that racial minorities are less likely than whites to have the most common forms of govern- that racial minorities are after academic documentation. Academic study lack the required the poor disproportionately the district court issued a preliminary injunction enjoining the law and finding that the plaintiffs injunction enjoining the law and finding that the plaintiffs the district court issued a preliminary whites to not have ID. Indeed, the survey found that one-fourth of African Americans do not whites to not have ID. Indeed, the survey walkouts by its Black Legislative Caucus. In 2005, the Georgia General Assembly passed its first voter ID law over pr In 2005, the Georgia General Assembly passed its first voter ID law over In 2005, Georgia and Indiana became the first states to significantly r United States; a valid U.S. military photo ID card; or a valid tribal photo ID card. United States; a valid U.S. military photo ID card; defend their legitimacy by other means. They claim that voter impersonation is a reality, voter impersonation is a reality, by other means. They claim that defend their legitimacy , Billups means of obtaining ID. In Common Cause of Georgia v. for a free did not provide dence in the electoral process. process. dence in the electoral While claims that ID laws increase voter confidence remain unverified, it is well-documented unverified, it is well-documented remain voter confidence laws increase While claims that ID voting rights advocates, these new voter ID laws are just a more subtle reincarnation of the subtle reincarnation just a more ID laws are voting rights advocates, these new voter voter ID. State of Georgia, by another state, or by the United States; a valid U.S. passport; a valid State of Georgia, by another state, or by the United States; a valid U.S. passport; Given the lack of evidence of voter impersonation, proponents of ID laws have sought to laws have sought of ID proponents voter impersonation, lack of evidence of Given the The Georgia and Indiana Laws: Setting the Stage Setting Laws: and Indiana The Georgia The legal cases discussed below present a multiplicity of state-specific data confirming the a multiplicity of The legal cases discussed below present

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133 es have had to be because the evidence in the record because the evidence in the record 130

134 the U.S. Supreme Court voted 6-3 to uphold the U.S. Supreme 127

and said “virtually nothing about the difficulties 129

132 126 The law required that voters present a form of ID that was present that voters The law required In the subsequent post-Shelby County Section 2 litigation 128 135 did “not provide any concrete evidence of the burden imposed on voters evidence of the burden any concrete did “not provide 131 The registrar could use the signature on the voter’s registration application as a application as a registration on the voter’s signature could use the The registrar 125 laws. Not all have made it as easy for voters to obtain the free ID, however, and some states’ and some states’ ID, however, voters to obtain the free laws. Not all have made it as easy for required the court to uphold its ID requirement, saying the court to uphold its ID requirement, required argued that Crawford litigation, Texas procedures for obtaining ID can significantly burden voters. for obtaining ID can significantly burden procedures registrar. - unsuc law but were Plaintiffs challenged the amended identity. the voter’s means of verifying blanket imprimatur of legality to any voter ID law. This is distinctly not the case. For example, blanket imprimatur of legality to any voter ID law. issued by the State of Indiana or by the United States and displayed the voter’s photo, name United States and displayed the voter’s issued by the State of Indiana or by the or had expired valid and an expiration date indicating that the ID was currently istration card), implementing regulations enabled any voter to obtain a voter ID for free from the county from any voter to obtain a voter ID for free enabled implementing regulations identification[,]” in this chapter for details involving the Texas ID law and the litigation). In the initial Section 5 in this chapter for details involving the Texas solved the problem with the earlier law. with the earlier solved the problem under the 14th Amendment. deci- the Crawford voter ID laws have interpreted and opponents of restrictive Proponents the ruling as a interpreted have erroneously , some proponents After Crawford sion differently. after the date of the last General Election. concerning the Texas law, Texas moved to dismiss the challenge to its ID law, in part on in moved to dismiss the challenge to its ID law, Texas law, concerning the Texas careful to ensure that they make free IDs available when adopting new, restrictive voter ID restrictive IDs available when adopting new, make free that they to ensure careful constituted a poll tax. cessful: federal courts found that the availability of free IDs that are relatively easy to obtain relatively IDs that are found that the availability of free cessful: federal courts the grounds that “[v]oter-identification laws are constitutional. The Supreme Court so held constitutional. The Supreme laws are that “[v]oter-identification the grounds faced by either indigent voters or voters with religious objections to being photographed.” objections faced by either indigent voters or voters with religious the law imposed on voters. Drawing from the district court’s determinations, the Supreme determinations, the Supreme the district court’s from the law imposed on voters. Drawing that it “controls this case[.]” that it “controls were likely to prevail on multiple claims, including the claim that failure to provide for free ID for free provide to failure the claim that claims, including on multiple likely to prevail were was lacking: the record did “not provide us with the number of registered voters without us with the number of registered did “not provide was lacking: the record who currently lack photo identification[,]” who currently , Marion County Election Board v. In Crawford Indiana’s voter ID law against a facial challenge that it violated the fundamental right to vote voter ID law against Indiana’s - be identical, to the name listed on their voter reg (which had to conform, but not necessarily Court found that the burden on voters was “limited” Court found that the burden Accordingly, the Supreme Court upheld the law. the Supreme Accordingly, The significance of the Georgia case is that subsequent state legislatur The significance of the Georgia case The next year the General Assembly amended the law, and part of the amendment and and part of the amendment and Assembly amended the law, The next year the General The plurality opinion balanced the State’s justifications for the law against the burden that against the burden justifications for the law The plurality opinion balanced the State’s Texas has repeatedly made that argument in litigation surrounding its law (see sidebar later that argument in litigation surrounding made has repeatedly Texas The court 138 The court also found Wisconsin’s The court also found Wisconsin’s In addition, the court found that the

142 140 143 In denying the motion to dismiss, the the motion to dismiss, In denying 136

137 In contrast, the court found that the justifications for the law 141 Drawing from expert and fact witness testimony, the court then found that expert and fact witness testimony, Drawing from 139 ported by the social science research and that such laws may tend to undermine confidence ported by the social science research preclearance lawsuit; and Texas, where the federal district court found that the law violated the federal district court found that the law where lawsuit; and Texas, preclearance in the electoral process as much as they promote it. as much as they promote in the electoral process …” Board. Marion County Election v. in Crawford is virtually no voter-impersonation fraud in Wisconsin.” is virtually no voter-impersonation implementation problems, and (3) includes compelling testimony from individuals affected by and (3) includes compelling testimony from implementation problems, , the terms of that law, the nature of the claims, and the specific holding of the claims, and the the nature law, , the terms of that at issue in Crawford and Twenty-fourth 2 of the VRA or the First, Fifteenth, under Section about claims brought argument that voter ID laws promote public confidence in the electoral process to be unsup- public confidence in the electoral process argument that voter ID laws promote and administrative hurdles in obtaining identification. and administrative hurdles and Texas in the sidebar later in this chapter. and Texas evidence presented at trial showed that African-American and Latino voters in Wisconsin evidence presented are traceable to far less likely to have an acceptable ID because of socioeconomic disparities fail to produce any Supreme Court preclusion of the claims made here.” The judge specifi- The judge made here.” of the claims Court preclusion any Supreme fail to produce test under the was a necessary balancing there fact that in Crawford cally pointed to the found that approximately 300,000 registered voters lacked one of the nine required forms voters lacked one of the nine required 300,000 registered found that approximately of photo ID. of multiple Section 2 lawsuits. Wisconsin is discussed below, South Carolina in Chapter 3, South Carolina of multiple Section 2 lawsuits. Wisconsin is discussed below, the effects of discrimination. those without ID, especially those in poverty, faced significant financial, transportation-related, faced significant financial, transportation-related, those without ID, especially those in poverty, the law violates the fundamental right to vote under the 14th Amendment. the VRA; South Carolina, where the State significantly modified the law during a Section 5 the State significantly modified the where the VRA; South Carolina, the law. the law. to craft stronger legal challenges, they have placed more emphasis on developing a record emphasis on developing a record legal challenges, they have placed more to craft stronger (2) demonstrates the law, affected by definitively how many people are that: (1) shows more were tenuous at best. It rejected Wisconsin’s voter fraud justification by finding that “there voter fraud justification by finding that “there Wisconsin’s at best. It rejected tenuous were In a decision issued on April 29, 2014, a federal district court judge found that Wisconsin’s that Wisconsin’s In a decision issued on April 29, 2014, a federal district court judge found Wisconsin,Section 2 of the federal district court enjoined the law as a violation of where voter ID law has a racially discriminatory result in violation of Section 2 of the VRA, and that voter ID law has a racially discriminatory result Section 5, a decision that was vacated after the Shelby County case, and is now the subject Section 5, a decision that was vacated Court’s approval of voter identification laws… While a photo identification law was squarely a photo identification law was squarely of voter identification laws… While approval Court’s The VRA at Work: Wisconsin, South Carolina, and Texas South Carolina, The VRA at Work: Wisconsin, Amendments against a photo ID law. Amendments against Texas district court explicitly rejected this argument: “Defendants overstate the Supreme overstate the Supreme this argument: “Defendants district court explicitly rejected Texas There are three states where the VRA has affected an enacted voter ID law in recent years: affected an enacted voter ID law in the VRA has states where three are There decision. In order decision. In order the Crawford their own lessons from The opponents of voter ID have drawn said nothing succeeded; Crawford under which the defendants narrowly 14th Amendment,

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149 - - Moreover, she cited Moreover, e the vast major 144 In May 2014, a state

147 145 The Arkansas case remains in litigation. The Arkansas case remains 148 According to the court opinion, the State’s own to the court opinion, the State’s According 153 The State Supreme Court instructed the trial court to The State Supreme 151 The trial court subsequently enjoined the law for that election. 152 and in Missouri, this provision was used successfully to challenge the state’s was used successfully to challenge the state’s and in Missouri, this provision 146 The Pennsylvania Supreme Court noted that although the free ID provisions af- ID provisions Court noted that although the free The Pennsylvania Supreme 150 permissibly added a qualification for voting. permissibly added a qualification for permanently blocking the enforcement of Pennsylvania’s voter ID law on the grounds that voter ID law on the grounds of Pennsylvania’s permanently blocking the enforcement pealed to Pennsylvania Supreme Court. The Pennsylvania Supreme Court found the availabil- Supreme Court. The Pennsylvania pealed to Pennsylvania Supreme population resides—13.2% of eligible African-American voters and 14.9% of eligible Latino African-American voters and 14.9% of eligible population resides—13.2% registered Latino voters lack accepted forms of ID, compared to 6.0% of registered white white 6.0% of registered to forms of ID, compared Latino voters lack accepted registered in Pennsylvania. On March 14, 2012, Pennsylvania passed a law requiring voters to show 14, 2012, Pennsylvania passed a law requiring in Pennsylvania. On March it violated the fundamental right to vote. ity of the State’s free voter ID problematic. The ID law had a “liberal access” provision, which The ID law had a “liberal access” provision, voter ID problematic. free ity of the State’s in its predictive judgment that there will be no voter disenfranchisement arising out of the judgment that there in its predictive ity of the State’s entire African-American population and a substantial plurality of its Latino and a substantial plurality of its Latino African-American population entire ity of the State’s - guaranteeing the fundamental right to vote in their state con Most states have a provision Applewhite v. Commonwealth of Pennsylvania. right to vote in Applewhite v. fundamental Pennsylvania’s stitutions, statements demonstrating that “15.3% of registered African-American voters and 11.3% of voters and 11.3% of African-American that “15.3% of registered statements demonstrating a valid photo ID in order to vote. The ID law was challenged in May 2012 as a violation of to vote. The ID law was challenged in May 2012 as a violation of a valid photo ID in order allowed voters to obtain a free ID through the Pennsylvania Department of Transportation the Pennsylvania Department of Transportation ID through allowed voters to obtain a free state officials had made it difficult for voters to actually obtain a used for voting. However, upcoming election.” court found that Arkansas’ 2003 photo ID law violated the state constitution because it im court found that Arkansas’ 2003 photo Weinschenk v. State. v. in Weinschenk government-issued requirement photo ID enjoin the voter ID law for the November 2012 election, unless the trial court was “convinced enjoin the voter ID law for the November 2012 election, unless the trial court fected “a minority of the population,” those most affected are “members of some of the most “members fected “a minority of the population,” those most affected are free ID. free to the court in the case showing that in “Milwaukee County alone—wher case showing that in “Milwaukee County to the court in the database comparison showed that 759,000 registered voters did not have a Pennsylvania database comparison showed that 759,000 registered voters lacked accepted ID, compared to 7.3% of eligible white voters.” to ID, compared voters lacked accepted voters. An analysis of statewide data shows similar disparities.” voters. An analysis vulnerable segments of the society.” (PennDOT) by completing an application stating that they did not have an ID that could be (PennDOT) by completing an application stating that they did not have an Commonwealth’s implementation of a voter identification requirement for purposes of the requirement implementation of a voter identification Commonwealth’s Missouri, Arkansas, and Pennsylvania Missouri, After the trial court denied the plaintiffs’ motion for preliminary relief, plaintiffs successfully ap- relief, plaintiffs motion for preliminary After the trial court denied the plaintiffs’ At the NCVR hearing in Minneapolis, Karyn Rotker, Senior Staff Attorney at the Wisconsin Karyn Rotker, hearing in Minneapolis, At the NCVR provided testimony citing expert statements plaintiffs, submitted ACLU, which represented Using State Law to Block Voter Identification Provisions: Identification to Block Voter State Law Using The most intensively litigated case applying state law to block an ID provision was brought was brought state law to block an ID provision The most intensively litigated case applying The parties tried the case in 2013, and on January 17, 2014, a judge issued an injunction The parties tried the case in 2013, and on January 17, 2014, a judge issued

The court found that The court found that 154 In addition to finding that the law In addition to finding 155 Barbara Arnwine, Executive Director of the Lawyers’ Barbara Arnwine, Executive Director Committee for Civil Rights Under Law and a guest commissioner at the NCVR hearing in North Carolina. ALLISON MEDER PHOTO CREDIT:

156

157 including Bertie County, which has the highest at 60.7 percent. […] Although […] highest at 60.7 percent. which has the Bertie County, including identification requirement will have to travel to a DMV office to obtain the card. identification requirement will have to travel to a DMV office to highest percentage of African-American voting-age populations in the State, the State, African-American voting-age populations in highest percentage of In 10 North Carolina counties, the only DMV office is open only once per month. the only DMV office is open only once per month. In 10 North Carolina counties, Four of these counties are among the 10 North Carolina counties that have the of these counties are among the 10 North Carolina counties that have the Four African-American voters comprised 22.5 percent of total registered voters in African-American voters comprised 22.5 percent of total registered Voters who need a special identification card to meet HB 589’s voter photo who need a special identification card to meet HB 589’s Voters number of grounds. These three different different These three number of grounds. plaintiffs have challenged H.B. 589 on a plaintiffs have challenged H.B. 589 burdened voters, the court found that the State had failed to provide any evidence support- found that the State had failed to provide voters, the court burdened includes a new government-issued photo impact of the new ID requirements on African impact of the new ID requirements ing the two justifications it offered for the law–preventing voter fraud and promoting public promoting public voter fraud and for the law–preventing ing the two justifications it offered issued….This includes issuance of less than four thousand DOS IDs.” issuance of less than four thousand issued….This includes Less than two months after the Shelby DOJ’s complaint included the following DOJ’s a wide-ranging voting law, H.B. 589, that a wide-ranging voting law, an April 2013 study where North Carolina’s North Carolina’s an April 2013 study where allegations regarding the disproportionate the disproportionate allegations regarding cases challenge the North Carolina law under cases challenge the North Carolina confidence in the electoral system. Thus, the court found the law unconstitutional. On May confidence in the electoral system. there were a number of impediments to getting a voter ID, including that in many counties to getting a voter ID, including that a number of impediments were there received inadequate had two days a week, state employees only open were the state offices sent to voters. messages were training, and inaccurate the VRA and have been consolidated. tered voter list to Department of Motor voter tered ID requirement. DOJ and two sets of private DOJ and ID requirement. ID and another 575,000 did not have an ID that would be valid for the 2012 election. In total, the 2012 election. would be valid for not have an ID that 575,000 did ID and another 8, 2014 the Governor the case to the of Pennsylvania announced that he would not appeal IDs for voting purposes (DOS [Department of State] IDs + PennDOT Voting IDs) have been + PennDOT Voting (DOS [Department of State] IDs IDs for voting purposes - of Elections matched the regis State Board State Supreme Court. State Supreme decision, North Carolina passed County decision, North Carolina Vehicles (DMV) records: (DMV) Vehicles Pending Litigation over North Carolina’s Photo ID Requirement over North Carolina’s Litigation Pending Americans. The complaint draws largely from Americans. The complaint draws largely from lacked the ID needed to vote. Moreover, the judge found that the judge found that to vote. Moreover, voters lacked the ID needed 1.3 million registered “[i]n contrast to the hundreds of thousands who lack compliant photo ID, only 17,000 photo who lack compliant photo ID, only of thousands hundreds “[i]n contrast to the

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NATIONAL COMMISSION ON VOTING RIGHTS 164 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 165 158 The studies found that Latinos and African Americans were con- The studies found that Latinos and African Americans were 159

160 identification, whereas of the 1,445,799 African-American registered voters, 7.4 registered voters, African-American whereas of the 1,445,799 identification, registered voter population in the State, but were only 54.2 percent (172,613) were only 54.2 percent (172,613) but population in the State, registered voter DMV-issued 3.8 percent appeared to not have in the State, registered voters identification. not to have DMV-issued percent appeared of the registered voters on the no-match list. Further, of the 4,562,097 white of the 4,562,097 Further, voters on the no-match list. of the registered voters on the no-match list [of those citizens with DMV issued ID] were list [of those citizens with voters on the no-match the State at the time of the analysis, 33.8 percent (107,681) of the registered of the registered 33.8 percent (107,681) analysis, at the time of the the State African-American. In contrast, white voters constituted 71.0 percent of the total white voters constituted In contrast, African-American. required by law. required be the case in two major academic studies, one focused on New Mexico and the other on be the case in two major academic studies, one focused on New Mexico PHOTO CREDIT: BEN BOWENS Defense and Educational Fund, at the NCVR Pennsylvania state hearing. PHOTO CREDIT: is not legally required. This has not only been documented anecdotally, it has been found to This has not only been documented anecdotally, is not legally required. to selectively disfranchise certain voters.” Jerry Vattamala (seated far right), Attorney for the Asian American to selectively disfranchise certain voters.” Jerry Vattamala sistently asked for identification at higher rates, regardless of whether voter ID was actually regardless sistently asked for identification at higher rates, Boston, Massachusetts. We’ve seen that across the country, whether there is a voter ID law or not, poll workers use that as an opportunity is a voter ID law whether there the country, seen that across We’ve from Minority Votersfrom Minority Examples of Poll Workers Improperly Requiring Identification Improperly Requiring Examples of Poll Workers Another notable problem is poll workers requiring identification from minority voters when it identification from is poll workers requiring Another notable problem “At certain poll sites, poll workers would only ask Asian-American voters for their ID and make it a requirement. ask Asian-American voters for their ID and make it a requirement. “At certain poll sites, poll workers would only

161 ed to present ed to present equir The court noted that not all voter 166 Texas submitted its law, S.B. 14, to DOJ for S.B. 14, to DOJ submitted its law, Texas 164

The court concluded that: 165 167 Any voter without a certificate had to complete an affidavit Any voter without a certificate had to 162

163 law in a discriminatory way against Asian Americans and other persons of color. and other persons of color. Americans Asian law in a discriminatory way against required to prove citizenship. in other instances, identification and, Some Asian-American voters were subject to excessive requests to present to excessive requests to present Asian-American voters were subject Some Even when the law was subject to a partial preliminaryEven when the law during the injunction 2012 elections [when poll workers were supposed to request ID, but still allow to request ID, poll workers were supposed 2012 elections [when those without ID to vote], we discovered that poll workers applied the voter ID discovered that poll workers applied we to vote], those without ID Texas v. Holder would later call the v. enacted what the court in Texas Nonetheless, in 2011, Texas stating that he or she did not have a certificate, and the voter would be r stating that he or she did not have a - his or her voter registra in-person voter present that an law required Prior to 2011, Texas Pennsylvania, Rahat Babar, the president of the Asian Pacific American Bar Association of of the Asian Pacific the president Babar, Pennsylvania, Rahat that, Pennsylvania testified another form of ID. and their relationship to the VRA. and their relationship to show that the law did not have a discriminatory effect. ers can easily obtain free photo ID and (2) that any underlying documents required to obtain photo ID and (2) that any underlying documents required ers can easily obtain free that the law would not have a retrogressive effect. This was partially based on data from effect. This was partially based on data from that the law would not have a retrogressive ID. to lack the requisite voter tered tion certificate in order to vote. tion certificate in order that ID were truly free of charge.” truly free that ID were - regis likely than a non-Latino more and potentially 120.0 percent, was at least 46.5 percent, Undeterred, Texas next sought preclearance in the U.S. District Court for the District of in next sought preclearance Texas Undeterred, ID laws are alike and laws “might well be precleared if they ensure (1) that all prospective vot- (1) that all prospective if they ensure alike and laws “might well be precleared ID laws are Section 5 preclearance. DOJ denied preclearance on the grounds that Texas failed to show that Texas on the grounds DOJ denied preclearance Section 5 preclearance. Columbia. Like DOJ, the federal court denied preclearance on the grounds that Texas failed that Texas on the grounds Columbia. Like DOJ, the federal court denied preclearance Case SpotlightCase Voter ID in Texas Voter Texas state databases submitted to the DOJ, which revealed that a Latino registered voter that a Latino registered state databases submitted to the DOJ, which revealed Texas Texas’ voter ID requirement perhaps best illustrates the questionable necessity of these laws perhaps best voter ID requirement Texas’ The NCVR also heard testimony to this effect with respect to Asian Americans. In Asian Americans. In respect to with to this effect testimony also heard The NCVR “most stringent” voter ID law in the country.

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wing 173 In addition, 169

168 As discussed 172 ought challenges to the

170 e, nothing less.” —nothing mor ­­ decision, Texas Attorney General Greg Attorney General Greg On the day of the Shelby County decision, Texas 171 required DPS [Department of Public Safety] offices to remain open in the required DPS [Department of Public Safety] offices to remain open reimbursed impoverished Texans for EIC-related travel costs; Texans reimbursed impoverished evening and on weekends; and expanded the range of identifications acceptable under SB 14 by allo expanded the range of identifications allowed indigent persons to cast provisional ballots without photo ID. allowed photo ID. indigent persons to cast provisional ballots without waived all fees for indigent persons who needed the underlying documents waived all fees for indigent persons voters to present student or Medicare ID cards at the polls; voters to present student or Medicare to obtain an EIC [Election Identification Certificate]; to obtain an EIC [Election Identification

disenfranchise minorities and the poor, the legislature tabled or defeated the legislature poor, disenfranchise minorities and the made this a far closer case. Ignoring warnings that SB 14, as written, would as written, Ignoring warnings that SB 14, case. made this a far closer record evidence suggests that SB 14, if implemented, would in fact have a would in fact have if implemented, that SB 14, suggests record evidence This conclusion African-American voters. on Hispanic and retrogressive effect minorities in Texas are disproportionately likely to live in poverty. disproportionately likely to live are Texas minorities in amendments that would have: of whom are African-American or Hispanic, lack photo ID; (2) the burdens lack or Hispanic, African-American of whom are on the poor; and (3) racial obtaining ID will weigh most heavily associated with flows from three basic facts: (1) a substantial subgroup of Texas voters, many Texas voters, of (1) a substantial subgroup flows three basic facts: from [C]rucially, the Texas legislature defeated several amendments that could have legislature defeated several amendments Texas the [C]rucially, • • • • • least $22 to obtain a birth certificate that would enable to them to obtain an ID. least $22 to obtain a birth certificate because of the law Texas enacted because of the law Texas more than 200 miles roundtrip to obtain an accepted ID and that they would have to pay at accepted ID and that they would have to obtain an than 200 miles roundtrip more Part of this determination was based on evidence that some voters would have to travel was based on evidence that Part of this determination above, the United States and multiple sets of private plaintiffs have br ered by Section 5. by Section ered the court found it significant that the legislature rejected a number of proposed amendments amendments rejected a number of proposed legislature the court found it significant that the stating: certain groups, accessible for more that would have made identification , which effectively ended the case because Texas was no longer cov- decided Shelby County, which effectively ended the case because Abbott announced that Texas would begin implementing its voter ID law. Abbott announced that Texas Texas appealed the district court’s ruling. During the course of the appeal, the Supreme Court the course of the appeal, the Supreme ruling. During appealed the district court’s Texas Texas ID law under Section 2 of the VRA, and the case is pending in federal court. Texas “Put another way, if counsel [defending the Texas law] faced an ‘impossible burden,’ it was law] faced an ‘impossible burden,’ if counsel [defending the Texas “Put another way, - - As a result, early voting turnout dropped early voting turnout dropped As a result, 177 Early voting makes it easier to vote, espe- Early voting makes Long lines were prevalent during both the early prevalent Long lines were 174 178

One study indicated that more than 201,000 voters likely One study indicated that more 180 179

176 With respect to the Sunday before Election Day, the findings were especially telling, the findings were Election Day, With to the Sunday before respect Inflexible work schedules, limited access to reliable transportation (including lower reliable transportation (including limited access to Inflexible work schedules, 181 175 hours that counties were required to offer for early voting from 96 to 48, and eliminated in- to offer for early voting from required hours that counties were managed to vote after midnight. person voting on the Sunday before Election Day. person voting on the Sunday before proportion of the early voting electorate than they did on Election Day, Tuesday, November Tuesday, of the early voting electorate than they did on Election Day, proportion by over 225,000 voters from 2008 to 2012. by over 225,000 voters from in the State. in African American churches in some states, including Florida, for congregants to go vote for congregants in some states, including Florida, in African American churches Florida is one state that has sought to restrict early voting. In advance of the 2012 election, early voting. restrict Florida is one state that has sought to the number of days that other things, reduced Florida enacted H.B. 1355 which, among ate.” Data from previous elections in Florida foreshadowed the disproportionate effect early voting the disproportionate elections in Florida foreshadowed previous Data from car-ownership rates), and the focus on early voting by get–out-the-vote efforts in minority rates), and the focus on early voting car-ownership rate cited as factors accounting for African Americans’ higher early voting communities were change has hit African Americans particularly hard because it had become a popular practice hard change has hit African Americans particularly in half the number of total 14 to eight, cut to offer early voting from permitted counties were enormously popular with voters and election administrators. Today, 33 states and the District 33 states and Today, with voters and election administrators. enormously popular some form of early voting. of Columbia offer cially for working people who have multiple commitments and responsibilities. As a federal As and responsibilities. who have multiple commitments cially for working people of white voters in the 2008 elec at a rate nearly double that of early voting opportunities cuts would have on African Americans and other minorities. An analysis of voting data from voting data from cuts would have on African Americans and other minorities. An analysis of casting 22 percent of the total EIP [early in-person] votes in the 2008 General Election even casting 22 percent the evening and on Saturdays and Sundays, including the Sunday before Election Day. This Day. Election and Sundays, including the Sunday before the evening and on Saturdays services. together after Sunday church tion. they cast on Election Day, but also that African Americans accounted for a much greater but also that African Americans accounted for a much greater they cast on Election Day, ended up their allies which encouraged early voting by African Americans, black voters elector total registered of the State’s 13 percent though they comprised approximately with African Americans constituting 31 percent of early voters on the final Sunday of voting of early voters on with African Americans constituting 31 percent In recent decades, the option of voting in person on days prior to Election Day has become of voting in person on days prior decades, the option In recent Unfortunately, in recent years, several states have significantly cut back on the number of years, several in recent Unfortunately, have often eliminated voting in these reductions days and hours of early voting. Critically, did not vote because of long lines. district court in D.C. noted, African Americans in several Florida counties took advantage noted, African Americans in several district court in D.C. voting period and on Election Day. Election Day lines were so long that some people only Election Day lines were voting period and on Election Day. 2008 found that “not only did African Americans cast more [early in-person] ballots than [early 2008 found that “not only did African Americans cast more VIII. EARLY IN-PERSON VOTING IN-PERSON EARLY VIII. 4, 2008. Perhaps due to the early voting mobilization efforts by the Obama campaign and 4, 2008. Perhaps due to the early voting mobilization efforts by the Obama

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188 The 189

185 187 The differential rates of early voting rates of early The differential 183

184 White voters, relatively speaking, had the lowest participation rates for lowest participation had the speaking, relatively White voters, 182 Over 36 percent of all North Carolinians who voted during the first week who voted during the of all North Carolinians Over 36 percent 190 Notably, beyond Florida, the report highlighted the increasing popularity of highlighted the increasing beyond Florida, the report Notably, 186 in the South voted early in-person, compared to 34.8 percent of white voters. percent of white voters. compared to 34.8 in the South voted early in-person, person at higher rates than other groups: 41 percent of African Americans Americans African 41 percent of groups: person at higher rates than other Moreover, African-American early in-person voters in the South also outpaced voters in the South also outpaced African-American early in-person Moreover, this same group of African-American voters in all other regions of the U.S. African-American voters in all other this same group of Notably, African Americans in Southern states continued to vote early in- Americans in Southern states continued African Notably, ballot during early voting in the 2012 general election, as compared with 52 percent of with 52 percent ballot during early voting in the 2012 general election, as compared ing early voting in the 2008 general election, compared to 51 percent of white voters. to 51 percent ing early voting in the 2008 general election, compared of registered voters, but were approximately 29 percent of early voters and 33 percent of of early voters and 33 percent percent 29 approximately voters, but were of registered white voters. In the 2012 general election, African-American voters made up an estimated 22 percent 22 percent In the 2012 general election, African-American voters made up an estimated In the 2008 general election, African-American voters made up 22 percent of registered of registered In the 2008 general election, African-American voters made up 22 percent voters in first week of early voting. About 71 percent of African American voters cast their voters in first week of early voting. About 71 percent voters, but cast about 29 percent of early votes and about 32 percent of votes during the of early votes and about 32 percent voters, but cast about 29 percent first week of early voting. About 71 percent of African American voters cast their ballot dur first week of early voting. About 71 percent

before Election Day. before racially discriminatory effect. racially discriminatory research found that the cutbacks led to more crowded polling places and that “voters who crowded found that the cutbacks led to more research same figure doubled in the 2014 midterm election compared to the 2010 midterm. in the 2014 midterm election compared doubled same figure Florida counties that were covered under Section 5 when they attempted to implement the 5 when they attempted to implement under Section covered were Florida counties that aforementioned statewide changes to early voting. The court recognized the potential for a the potential for a to early voting. The court recognized statewide changes aforementioned early voting among African Americans nationally. In the 2012 general election, the number of In the 2012 general nationally. early voting among African Americans of early voting (followed by African American voters). of early voting (followed changes reflected in H.B. 1355 was to inconvenience African Americans specifically.” in H.B. 1355 was to inconvenience changes reflected groups, as well as the DOJ, have brought lawsuits challenging H.B. 589. lawsuits challenging well as the DOJ, have brought as groups, faced greater congestion, and presumably longer lines… were disproportionately African disproportionately longer lines… were congestion, and presumably faced greater to 10. In addition, the law eliminated the first Sunday of early voting. A number of civil rights to 10. In addition, the law eliminated the first Sunday of early voting. A number were part of the basis for the U.S. District Court for D.C.’s denial of preclearance to the five of preclearance denial U.S. District Court for D.C.’s part of the basis for the were In 2013, North Carolina enacted a law, H.B. 589, that, among other measures, eliminated the H.B. 589, that, among other measures, enacted a law, In 2013, North Carolina Sunday early in-person voting. By comparison, African Americans had the highest rate on the Americans had the highest rate on the voting. By comparison, African Sunday early in-person One study conducted after the 2012 election concluded that the “effect of early voting One study conducted after the 2012 first seven days of early voting, reducing the number of days to vote early in person from 17 to vote early in person from reducing the number of days first seven days of early voting, first Sunday of early voting, while Latinos participated at the highest rate on the last Sunday at the highest rate on the last Sunday voting, while Latinos participated first Sunday of early African Americans voting early in-person reportedly tripled compared to 2008. Similarly, this Similarly, to 2008. compared tripled reportedly African Americans voting early in-person American.” The data in North Carolina mirrors the findings in Florida regarding early voting: regarding the findings in Florida mirrors The data in North Carolina • • egional - The dispro 191

195 194 olina has been confirmed olina has been confirmed each, at NCVR Columbus r

192 Similarly, in 2012, African American voters in Cuyahoga County utilized early vot- in 2012, African American voters in Cuyahoga Similarly, 193 portionate use of early voting by African Americans in North Car voting by African Americans in North portionate use of early by academic research. of early voting in 2012 were African-American. Additionally, there was a notable peak in was a notable peak there Additionally, African-American. in 2012 were of early voting whites declined. African Americans cast 43 percent of all Sunday ballots. Americans cast 43 percent whites declined. African African-American participation during weekend voting, while weekend early voting for during weekend voting, African-American participation PHOTO CREDIT: JIMMEY MCEACHERN hearing. PHOTO CREDIT: percent of all ballots cast in 2008, but cast 31 percent of early in-person ballots, while whites all ballots cast in 2008, but cast 31 percent of percent of early in-person ballots. of the electorate but cast only 65 percent made up 74 percent Petee Talley, Secretary-Treasurer of the Ohio State AFL-CIO and co-chair of the Ohio Voter Protection Coalition, Protection of the Ohio State AFL-CIO and co-chair of the Ohio Voter Secretary-Treasurer Petee Talley, includes Cleveland, found that African-American voters used early in-person voting at a rate used early in-person voting at a rate found that African-American voters includes Cleveland, ing at a rate more than 20 times greater than white voters. About 77.6 percent of early voters of early 77.6 percent than white voters. About than 20 times greater ing at a rate more estimated to have been African American. in Cuyahoga in 2012 are testified about the need for ongoing community voter education and outr approximately 26.6 times greater than that of whites. Put another way, “African Americans than that of whites. Put another way, 26.6 times greater approximately to less than 7% for in person voters, compared accounted for nearly 78% of all early whites.” In Franklin County, Ohio (which includes Columbus), African Americans represented 21 Ohio (which includes Columbus), African Americans represented In Franklin County, done early in-person, as opposed to only 8 percent of white ballots. done early in-person, as opposed to only 8 percent Ohio. A Lawyers’ Committee analysis of voting patterns in 2008 in Cuyahoga County, which which analysis of voting patternsOhio. A Lawyers’ Committee in Cuyahoga County, in 2008 Overall, 13.3 percent of all African-American ballots cast in 2008 in Franklin County were of all African-American ballots cast in 2008 in Franklin County were Overall, 13.3 percent Cutbacks to early voting have also disproportionally affected African American voters in affected African American voting have also disproportionally Cutbacks to early

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- - 196 According to the complaint, According 200 In fact, statements and actions by 202 On May 1, 2014, a coalition of civil rights organiza-

199

198 197 The plaintiffs’ motion for a preliminary injunction was filed The plaintiffs’ motion for a preliminary 201

203 disputed by Defendants[, and] the State’s interests are insufficiently weighty to State’s and] the disputed by Defendants[, prior to Election Day—a right previously conferred to all voters by the State— prior to Election Day—a right previously justify the injury to Plaintiffs. outweighs the State’s interest in setting the 6 p.m. Friday deadline. The burden deadline. Friday 6 p.m. interest in setting the outweighs the State’s in the national and statewide election is on Ohio voters’ right to participate On balance, the right of Ohio voters to vote in person during the last three days to vote in person during the last the right of Ohio voters On balance, by Plaintiffs and not as evidenced by the statistical analysis offered great, public officials make clear that the effects of the cutbacks were well understood. For exam- were public officials make clear that the effects of the cutbacks of Elections member of the Franklin County Board a of a local newspaper, ple, in the words permissible day for early in-person voting by non-uniformed and overseas voters from the and overseas voters from early in-person voting by non-uniformed permissible day for ing on the Monday before Election Day. ing on the Monday before Monday before the election to the Friday before the election, thereby eliminating three early eliminating three the election, thereby Friday before the election to the Monday before site following a specific schedule set by the State. Directive 2012-35 eliminated early voting by the State. Directive site following a specific schedule set Protection Clause by treating uniformed and overseas citizens, and other voters, differently. overseas citizens, and other voters, uniformed and Clause by treating Protection eliminate for the 2014 election. explained his support for the 2012 cutback like this: “I guess I really actually feel we shouldn’t actually feel we shouldn’t explained his support for the 2012 cutback like this: “I guess I really African-American—voter turn- to accommodate the urban—read contort the voting process out machine.” counties in Ohio, regardless of size and other differences, to conduct early voting at a single of size and other differences, counties in Ohio, regardless had traditionally taken advantage of, including all week opportunities that African Americans end hours and certain evening hours. forcing all counties to eliminate all evening early voting hours, all Sunday voting, and early vot all forcing the three early vote days, however, because the law violated the 14th Amendment’s Equal Equal the 14th Amendment’s because the law violated early vote days, however, the three tions and churches filed a lawsuit challenging these changes. tions and churches which eliminated the first week of early voting and, because that was the only week during which eliminated the first week of early and vote, S.B. 238 eliminated the only opportunity for same- which one could both register would disproportionately burden African-Americans. burden would disproportionately In 2011 and 2012, Ohio enacted legislation that, among other things, changed the last changed the among other things, legislation that, 2012, Ohio enacted In 2011 and day voter registration. Several days later, Secretary of State Husted issued Directive 2014-06, of State Husted issued Directive Secretary Several days later, day voter registration. vote days. A federal court blocked implementation of the law and ordered the restoration of the restoration law and ordered court blocked implementation of the vote days. A federal voting were taken in the face of well-publicized data demonstrating that cuts in early voting voting were Subsequently, in late 2013 and early 2014, the Ohio legislature hastily passed S.B. 238, and early 2014, the Ohio legislature in late 2013 Subsequently, Also in 2012, Ohio Secretary of State Husted issued Directive 2012-35, which required all 2012-35, which required of State Husted issued Directive Also in 2012, Ohio Secretary June 30, 2014 and remains pending. June 30, 2014 and remains The judge noted: The recent actions that Ohio’s legislators and Secretary of State have taken to restrict early of State have taken to restrict legislators and Secretary actions that Ohio’s The recent 157,000 Ohio citizens voted in 2012 during the periods that S.B. 238 and Directive 2014-06 Directive 157,000 Ohio citizens voted in 2012 during the periods that S.B. 238 and -

204 e believe the PHOTO CREDIT: TIM RUMMELHOFF PHOTO CREDIT: process. The recent history of voting discrimination and restricted ballot access for minority ballot access for history of voting discrimination and restricted The recent process. minority voters communities where remote expand voting locations into more to refusals examples also contains numerous documented in the 2006 NCVR report record The reside. hearing. at the NCVR Minneapolis regional One Wisconsin Now, their right to vote…” –Analiese Eicher, Many in the State have expressed concern will bear particularly heavily on expressed that the cutback Many in the State have resides. minority population of the State’s significant proportion a where Milwaukee voters, Finally, in Wisconsin, another state that has seen a number of voting controversies in recent in Wisconsin, in recent of voting controversies has seen a number another state that Finally, addressed at length in the forthcoming report on election administration. at length in the forthcoming report addressed passage of this bill would absolutely devastate the ability of many voters marginalized in other ways to access the ability of many voters marginalized passage of this bill would absolutely devastate of polling places for people with disabilities, a major problem in American elections, will be in of polling places for people with disabilities, a major problem of how such activities disadvantage minority voters. As is detailed in Chapter 7, implementa of how such activities disadvantage minority voters. As is detailed in Chapter tion of language assistance requirements at the polls continues to be a problem; accessibility at the polls continues to be a problem; tion of language assistance requirements Senate Bill 324 in our current legislative session would eliminate any weekend hours for in-person absentee legislative session Senate Bill 324 in our current IX. PROBLEMS AT POLLING PLACES AT PROBLEMS IX. voters, however, contains reports of polling place closures in minority areas and jurisdictions’ in minority areas of polling place closures contains reports voters, however, years, Governor Scott Walker has signed a bill that eliminates weekend early voting altogether. weekend early voting altogether. has signed a bill that eliminates years, Governor Scott Walker voting and would not allow municipal clerks to offer hours later than 6:00 p.m. during the week. W voting and would not allow municipal clerks An accessible, fully-equipped, and functioning polling place is, of course, critical to the voting An accessible, fully-equipped, and functioning polling place is, of course, “Even with extended hours, we still saw long lines on election days [in 2008 and 2012]… Assembly Bill 54 and “Even with extended hours, we still saw long

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NATIONAL COMMISSION ON VOTING RIGHTS 172 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 173 Long lines 207

206 The federal court in Spirit

The tribe was successful 210 208 209 Further, voters in urban areas voters in urban areas Further, 205 lines led an estimated 130,000 voters to leave their polling locations without lines led an estimated 130,000 voters excessively long lines of voters waiting, many of them for hours on end. These many of them for hours on end. excessively long lines of voters waiting, voters waited in line an average of three African-American casting a ballot. and national media covered the multitude of problems stemming from and national media covered the multitude times longer than their white counterparts.” Gary Daniels, Associate Director of the Ohio American Civil Liberties Union at the NCVR Gary Daniels, Associate Director of the Ohio American Civil Liberties Union Columbus regional hearing “In 2004, Election Day was a fiasco in many places around Ohio. Local, state, state, Local, Election Day was a fiasco in many Ohio. places around “In 2004, lines[,]” which disenfranchised minority voters disproportionately. lines[,]” which disenfranchised minority lines prevent or deter voting. Research on recent elections has shown that African-American has shown that African-American elections on recent Research or deter voting. lines prevent high proportions of Blacks, as well as younger voters—had later closing times on Election of Blacks, as well as younger high proportions books, long lines on Election Day may be more than just an inconvenience; for some, long than just an inconvenience; Election Day may be more books, long lines on minutes, followed by an average wait time of 19 minutes for Hispanic voters. By comparison, for Hispanic voters. By comparison, by an average wait time of 19 minutes minutes, followed in minority communities were also a pressing issue during the 2004 election, as seen in Ohio. issue during the 2004 also a pressing in minority communities were in keeping open the two polling places located on its reservation. North Dakota county’s plans to close all but one of the eight voting locations in the county plans to close all but one of the eight North Dakota county’s Day relative to precincts with higher concentrations of White and elderly voters.” to precincts Day relative study of precinct-level data, including closing times, in Florida from the November 2012 elec- the November data, including closing times, in Florida from study of precinct-level and Hispanic voters are likely to experience longer wait times than white voters. One study longer wait times than white likely to experience are and Hispanic voters that minority voters waited longer post-election survey data concluded using 2008 and 2012 Spirit Lake Tribe v. Benson v. access to the ballot. For example, on October 8, 2010, plaintiffs in Spirit Lake Tribe tion found that “precincts with greater proportions of Hispanics—and in several counties, with counties, several in Hispanics—and of proportions greater with “precincts that found tion than white voters at the polls. The average wait time for African Americans was highest at 24 African Americans was highest at 24 the polls. The average wait time for than white voters at - for state resi after controlling in place largely remained these disparities in wait time by race waited longer to vote than their counterparts in suburban and rural areas. waited longer to vote than their counterparts white voters waited an average of 12 minutes to vote. Notably, the authors point out that Notably, an average of 12 minutes to vote. white voters waited dence and voting mode (Election Day versus early voting). dence and voting mode (Election Day Whether a reflection of inadequate staffing, too few voting locations, or problems with poll or staffing, too few voting locations, of inadequate Whether a reflection One common and well-publicized problem at the polls in recent elections has been long lines. elections has been polls in recent at the problem and well-publicized One common (citing financial reasons) and implement a mail-in ballot program. (citing financial Closure of polling places serving minority voters continues to raise concerns of about equal Closure Closing and Consolidating Polling Places Polling and Consolidating Closing secured a preliminary injunction under Section 2 of the VRA, which curtailed the injunction under Section 2 of the VRA, a preliminary County secured An investigation found that the “misallocation of voting machines led to unprecedented long of voting machines led to unprecedented An investigation found that the “misallocation The experiences with long lines in particular states help illustrate these national findings. A The experiences with long lines in particular - In The - 212 218 es. The court 215

According to to According 214 220 event the closur

219 , consolidate precincts inter alia, consolidate precincts Tribal members testified that they would members testified that they would Tribal Bexar County moved forward with these Bexar County moved forward 211 Another would have forced voters residing voters residing Another would have forced 217 221

216 The tribal members and the court were skeptical that the county could ensure that county could ensure skeptical that the The tribal members and the court were 213 system that might be entirely appropriate for the County as a whole, could for the County as a whole, system that might be entirely appropriate Lake Reservation. Reservation that simply do not exist elsewhere in Benson County. Thus, a Thus, Reservation do not exist elsewhere in Benson County. that simply well create a significant burden on voting within the confines of the Spirit well create a significant burden [T]here are burdens that fall on the voting process on the Spirit Lake [T]here are burdens that fall on the nomically and educationally challenged” than the rest of the county, and had “staggering county, of the than the rest nomically and educationally challenged” preparations for a then-upcoming special gubernatorial election. preparations recall - lacked access to reli voting location because they at the one proposed not be able to vote problems in areas including economics, education, housing, and employment.” including in areas problems miles away from its previous location in a predominantly Latino community into an area Latino community into an area location in a predominantly its previous miles away from predominantly-Latino west side of San Antonio. predominantly-Latino pattern of discrimination suffered by members of [the tribe],” the court considered evidence considered by members of [the tribe],” the court pattern suffered of discrimination polling places. on-reservation keep open the two plans, even though DOJ had yet to make a decision on the County’s request for Section 5 for request plans, even though DOJ had yet to make a decision on the County’s This led the Mexican American Legal Defense and Education Fund (MALDEF) preclearance. ing places from 20 to 11, in the process eliminating the five such polling places serving the 20 to 11, in the process ing places from Lake Tribe agreed with plaintiffs that the severe reduction in voting locations would risk ef- would risk in voting locations reduction that the severe with plaintiffs agreed Lake Tribe and change the locations of polling places in predominantly Latino areas as part of the as part of the Latino areas and change the locations of polling places in predominantly addition, members testified that a mail-in ballot process would be ineffective and undesir mail-in ballot process addition, members testified that a able. able public or private transportation, could not afford to pay for transportation costs, or were or were to pay for transportation costs, transportation, could not afford able public or private olling place nearly five challenging the changes, one consolidation would have moved a polling place nearly five further observed: closures were enjoined shortly after MALDEF filed its action. were closures fectively disenfranchising a portion of the tribe’s voters; noting the well-documented “historic noting the well-documented “historic voters; a portion of the tribe’s fectively disenfranchising concerned about the distance from remote parts of the reservation to the one location. parts of the reservation remote concerned about the distance from changes would infringe on west side residents’ right to vote by forcing them to go far from them to go far from right to vote by forcing changes would infringe on west side residents’ testimony at the NCVR California an attorney for the plaintiffs in a case state hearing from the tribe’s sizable transient population would receive their ballots by mail. population would receive sizable transient the tribe’s that closing the voting locations on and near the reservation would likely have a dispropor locations on and near the reservation that closing the voting the county to decision to require tribal members, which supported the tionate impact on to file a Section 5 enforcement action in federal court, which alleged that the county’s action in federal court, which alleged that the county’s to file a Section 5 enforcement their homes to cast their ballots. Plaintiffs sought an injunction to pr without easy access to public transportation. In reaching its decision, the court recognized that Spirit Lake’s population was “more eco- population was “more that Spirit Lake’s its decision, the court recognized In reaching In 2003, Bexar County, Texas announced plans to reduce the number of early voting poll- to reduce announced plans Texas In 2003, Bexar County, In 2003, Monterey County, California announced plans to, County, In 2003, Monterey

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229 231 equested Plaintiffs brought suit, seeking to to suit, seeking Plaintiffs brought 222

226 , Monterey County’s plan to consolidate plan to consolidate County’s inter alia, Monterey Monterey County informed the district court that the district court that County informed Monterey 224

228 227 While DOJ ultimately approved the voting precinct changes (minus (minus changes the voting precinct While DOJ ultimately approved After the federal trial court entered a limited temporary restraining a limited temporary restraining court entered After the federal trial 225 223

230 locations for the North Harris Montgomery Community College District in Texas. Under the Community College District in Texas. locations for the North Harris Montgomery precincts and reduce the number of polling places was legally unenforceable due to the due to the places was legally unenforceable the number of polling and reduce precincts precinct in Pennsylvania, where 61.8 percent of the voting age population was African- 61.8 percent in Pennsylvania, where precinct black university that was the former, more spacious, site of the precinct’s polling place. polling spacious, site of the precinct’s more black university that was the former, proposal, the site with the smallest proportion of minority voters was meant to serve 6,500 of minority voters was the site with the smallest proportion proposal, responded with a More Information Request, at which point the State abruptly withdrew the Information Request, at which point the State abruptly withdrew with a More responded also blocked efforts to close polling places in The same witness testified that DOJ proposal. in predominantly Latino communities to cast their ballots at the Sheriff’s Posse Club House, Posse Club House, Sheriff’s their ballots at the communities to cast Latino in predominantly Navajo Nation in Arizona. Local election officials, fearing even worse conditions for the general election, r Local election officials, fearing even worse conditions for the general election, serve over 67,000 voters. During the 2008 primary election, it had to remain open until 10:30 p.m. to process all of all of open until 10:30 p.m. to process During the 2008 primary election, it had to remain and one optical scanner, had only one bathroom, and had no shelter for waiting voters. had only one bathroom, and one optical scanner, a hunting club in a predominantly Anglo neighborhood. predominantly a hunting club in a es from DOJ’s review. DOJ’s es from county’s failure to secure preclearance of the proposed changes from the DOJ under the DOJ under changes from of the proposed preclearance to secure failure county’s enjoin the recall election on the basis that, election on enjoin the recall facilities that a campaign volunteer arranged for the delivery of six portable toilets at his own facilities that a campaign volunteer arranged for the delivery of six portable order and ordered the county to show cause why a preliminary injunction halting any further injunction halting any further why a preliminary the county to show cause and ordered order not issue, should election preparations for Section 5 preclearance a proposal to close polling places in several Native villages. DOJ a proposal for Section 5 preclearance the proposals at issue), it was action taken under Section 5 that led to the withdrawal of Section 5 that led to the withdrawal of at issue), it was action taken under the proposals polling place consolidations. the problematic the proposed changes would not occur and withdrew the problematic polling place chang polling place the problematic not occur and withdrew changes would the proposed that the County Board of Elections move the polling place to Lincoln University, a historically of Elections move the polling place to Lincoln University, that the County Board the waiting voters. In 2006, DOJ objected to the reduction in the number of polling places and early voting in the number of polling places and early voting In 2006, DOJ objected to the reduction voters, while the most heavily minority site (79.2 percent African-American and Latino) would site (79.2 percent voters, while the most heavily minority Section 5 of the VRA. ould only fit six voting booths Section 2 of the VRA, the polling place for that jurisdiction could only fit six voting booths Inadequate Polling PlacesInadequate Polling At the Pennsylvania state hearing, NCVR received testimony about the Lower Oxford East East testimony about the Lower Oxford At the Pennsylvania state hearing, NCVR received to a complaint filed against Chester County officials under American in 2008. According As set forth in testimony submitted at the NCVR hearing in Denver, in 2008 Alaska submitted in 2008 Alaska the NCVR hearing in Denver, As set forth in testimony submitted at The Board refused. According to the lawsuit, so many voters waiting in line needed restroom to the lawsuit, so many voters waiting in line needed restroom According refused. The Board The parties As a result, As a result, 237 233

Others reportedly waited six hours or longer, with with waited six hours or longer, Others reportedly 234 235

238 In 2009, after receiving complaints about long lines during the 2008 In 2009, after receiving 236 Further, plaintiffs alleged that a Republican poll watcher challenged the identities challenged the poll watcher alleged that a Republican plaintiffs Further, 232 disenfranchised voters of color. disenfranchised other polling place resources created a perfect storm of long lines and resources created a perfect storm other polling place failure of Voter Services poll book and lack of to provide an up-to-date Voter failure of [t]he combination of an inadequately-sized polling place, unlawful challenges, unlawful challenges, place, of an inadequately-sized polling [t]he combination On the right, Marian Schneider, Senior Attorney at the Advancement Project, testified at the NCVR Pennsylvania testified at the NCVR Pennsylvania Senior Attorney at the Advancement Project, On the right, Marian Schneider, African- to move a polling place in a predominantly of elections of a local board state hearing about the failure turnout. in excessively long lines and depressed central location, resulting American community to a larger, BEN BOWENS PHOTO CREDIT: later settled the lawsuit, and the Board of Elections agreed to move the polling place back to of Elections agreed later settled the lawsuit, and the Board photo ID, and that an election official dismissed voters’ concerns an election official dismissed voters’ photo ID, and that about this. many leaving without having the chance to vote; one student was given an estimated wait many leaving without having the chance Lincoln University’s campus. Lincoln University’s election, the township relocated the polling place to a building that is “even farther away from from the polling place to a building that is “even farther away election, the township relocated voters, and equally small.” campus, even less-accessible to African-American expense. of young African-American voters exclusively, even those with valid registration cards and cards those with valid registration even voters exclusively, of young African-American time of eight hours. do so each time due to the long lines. One voter reportedly attempted to vote at three times throughout the day, but was unable to the day, times throughout attempted to vote at three One voter reportedly

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NATIONAL COMMISSION ON VOTING RIGHTS 176 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 177 - ejudice,” ed “immediate injury” Brooks v. Gant v. As the Brooks equir 243 As Julie Garreau, an enrolled member of an enrolled As Julie Garreau,

241 245 244 Native Americans were able to work with county Native Americans were 242

239 For example, in Dewey County, South Dakota, which has a population that is 74 For example, in Dewey County, 240 lawsuit progressed, South Dakota officials and the county defendants changed their posi- South lawsuit progressed, have been working for some time to get election officials to provide satellite offices for reg- for provide satellite offices to for some time to get election officials have been working roads, electricity, or running water, who had to drive an hour and a half each way to the near to drive an hour and a half each way who had or running water, electricity, roads, barriers for Native Americans in his tribe to take advantage of in-person absentee voting; it is barriers for Native Americans in his tribe to take advantage of in-person absentee percent Native American, “over 60 percent of [the] population lives in Eagle Butte, which is of [the] population lives Native American, “over 60 percent percent being, the court concluded the plaintiffs could no longer show the r resources to make a trip to early vote.” resources reservations. Currently, the only place to take advantage of the more than five weeks of advantage of the more the only place to take Currently, reservations. istration and in-person absentee voting—South Dakota’s version of early voting—on Indian Dakota’s istration and in-person absentee voting—South NCVR Rapid City hearing that poverty and traveling great distances to the county seat create to the county seat create distances NCVR Rapid City hearing that poverty and traveling great so the plaintiffs may file a new lawsuit in the future should the State fail to extend the satellite should the so the plaintiffs may file a new lawsuit in the future spoke of Native American voters living in very rural areas without cell service, Internet, even voters living in very rural areas spoke of Native American similar. Mark Wandering Medicine, a member of the Northern Cheyenne Tribe, testified at the a member of the Northern Medicine, Cheyenne Tribe, Mark Wandering similar. Day. and dismissed the lawsuit as unripe for consideration; the dismissal was “without pr and dismissed the lawsuit as unripe for consideration; the dismissal was a two-hour drive one way from his home on the Northern Cheyenne Reservation to Forsyth, a two-hour drive one way from away from reservation lands. The lack of early voting sites on reservations essentially means on reservations lands. The lack of early voting sites reservation away from est polling place. officials to set up a satellite office on the reservation. on the officials to set up a satellite office early voting on the reservation beyond 2018. early voting on the reservation early voting in most counties in South Dakota is at the county seat, typically a great distance Dakota is at the county seat, typically a great early voting in most counties in South the county seat of Rosebud County, Montana. the county seat of Rosebud County, tion, agreeing to provide the early voting at the satellite locations proposed by the plaintiffs the early voting at the satellite locations proposed to provide tion, agreeing of the issue for the time year 2018. On August 6, 2013, given the resolution the through the Cheyenne River Sioux Tribe, testified, more than 30 percent of the population lives below than 30 percent testified, more the Cheyenne River Sioux Tribe, or do not have the financial vehicles, not own reliable the poverty line, and “many voters do that most Native Americans in the county get no early voting and can only vote on Election that most Native Americans in the county In Shannon County, however, Native Americans were forced to file suit in 2012 under to file suit in 2012 forced Native Americans were however, In Shannon County, Witnesses at NCVR’s Rapid City, South Dakota hearing testified that advocates in the State South Dakota hearing testified Rapid City, Witnesses at NCVR’s Sections 2 and 5 of the VRA, among other federal and state laws. Sections 2 and 5 of the VRA, among On October 10, 2012, Native Americans from Montana’s Fort Belknap, Crow, and Northern Fort Belknap, Crow, Montana’s On October 10, 2012, Native Americans from Cheyenne Reservations brought suit seeking to open satellite county offices with in-person Cheyenne Reservations brought Barriers to Exercising Voting Rights for Native Americans for Native Rights Voting to Exercising Barriers At NCVR’s Denver regional and Arizona state hearings, Native American voting advocates Native American voting advocates and Arizona state hearings, Denver regional At NCVR’s 40 miles from the county seat in Timber40 miles from Lake.” The problems Native Americans in Montana face in using in-person absentee voting are Native Americans in Montana face in using in-person absentee voting are The problems eed to open the case settled out of the case settled out 246 247 dships and intimidation plaintiffs have and the amended list of acceptable IDs was precleared by the DOJ. IDs was precleared and the amended list of acceptable 247b The claim was settled, with the State agreeing to change the types of ID to change agreeing The claim was settled, with the State 247a law based upon evidence that the law had a disproportionate effect on Native American effect on Native American that the law had a disproportionate law based upon evidence permitted, Montana allows in-person absentee voting and late registration. Montana allows in-person Native American plaintiffs also achieved a measure of success in challenging Arizona’s 2004 Arizona’s of success in challenging also achieved a measure Native American plaintiffs absentee voting and late voter registration in Blaine, Rosebud, and Big Horn Rosebud, and in Blaine, Counties. After registration voting and late voter absentee to dismiss the lawsuit, in Missoula refused a federal district judge court on June 10, 2014. Under the terms of the settlement, election officials agr 2014. Under the terms of the settlement, court on June 10, voting sites on reservations for two days a week during the month-long period during which days a week during the month-long for two voting sites on reservations voter ID law. Among other claims in the case, the Navajo Nation challenged the voter ID case, the Navajo Nation challenged Among other claims in the voter ID law. voters. Outright voter intimidation is sadly not a complete vestige of the past. PHOTO CREDIT: JOHNNY SUNDBY faced in voting rights cases in Montana. PHOTO CREDIT: From Left, OJ Seamans Sr., Executive Director of Four Directions, and Bret Healy, consultant at Four Directions, consultant at Four Directions, Healy, and Bret of Four Directions, Executive Director Left, OJ Seamans Sr., From testified at the NCVR Rapid City hearing. Healy testified about the the har X. VOTER INTIMIDATION AND VOTER VOTER CHALLENGES X. INTIMIDATION

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NATIONAL COMMISSION ON VOTING RIGHTS 178 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 179 Though 249 The Federal Prosecution of Election Offenses The Federal Prosecution 251 the fact that it has not been used more often is mostly the result of the often is mostly the result the fact that it has not been used more The perpetrators, particularly of deceptive practices, are often difficult to find. often difficult The perpetrators, particularly of deceptive practices, are 250 252 The company ultimately took down 248 nization, along with several others, undertook a campaign to get the signs taken down. In nization, along with several others, undertook many have argued that 11(b) could be utilized more vigorously and that DOJ has interpreted and that DOJ has interpreted vigorously many have argued that 11(b) could be utilized more population data to demonstrate that the population data to demonstrate that d mailings, are still still of flyers and mailings, are most commonly in the form misinformation campaigns, manual itself describes intimidation as being subjective and often without concrete evidence concrete manual itself describes intimidation as being subjective and often without person… shall intimidate, threaten, or coerce, coerce, or threaten, intimidate, shall person… billboards would not identify itself publicly. would not identify itself publicly. billboards it too narrowly, ing.” its letter to Clear Channel, the Lawyers’ Committee said the signs, “stigmatize the African- its letter to Clear Channel, the Lawyers’ Milwaukee, with menacing warnings about signs were targeted at African-American signs were During the 2012 election, billboards billboards During the 2012 election, However, since the Act’s initial passage in 1965, DOJ has filed suit for intimidation or decep- since the Act’s However, and the billboards “attach an implicit threat “attach an implicit threat and the billboards areas in Cleveland and Cincinnati and later areas any person for voting or attempting to vote.” challenges in bringing an intimidation claim. of criminal prosecution to the civic act of vot- of criminal prosecution communities. For example, one billboard communities. For example, one billboard from voting. voting. from frequent. For example, in 2004 in Milwaukee, a flier purportedly from the “Milwaukee Black the “Milwaukee Black from in Milwaukee, a flier purportedly For example, in 2004 frequent. or witnesses. or attempt to intimidate, threaten, or coerce or coerce or attempt to intimidate, threaten, that was 96 percent black. The Lawyers’ that was 96 percent tive practices under the VRA in only four instances, and only twice in recent years. tive practices under the VRA in only four instances, and only twice in recent the signs after the client who paid for the was mounted in an area in Cleveland was mounted in an area were placed in predominantly minority placed in predominantly were voter fraud and the penalties for violations. voter fraud and the penalties for violations. violence have become rare, more sophisticated tactics, relying on the use of intimidating use of intimidating on the sophisticated tactics, relying more rare, violence have become Section 11(b) of the VRA states that “no Committee sent a letter to Clear Channel, the owner of the billboard spaces, and that orga- spaces, the owner of the billboard Committee sent a letter to Clear Channel, Voters League” was distributed in African-American neighborhoods to discourage people discourage people African-American neighborhoods to League” was distributed in Voters American community by implying that voter fraud is a more significant problem in African significant problem voter fraud is a more American community by implying that American neighborhoods than elsewhere,” Although for the most part schemes designed to restrict voting that rely on physical physical on voting that rely to restrict schemes designed for the most part Although This makes prosecutors reluctant to devote resources to pursuing such cases. to devote resources reluctant This makes prosecutors The Lawyers’ Committee used census tract The Lawyers’ Committee used census - Prior to Shelby 253 In order to determine where to determine where In order 254 A total of 153 counties and parishes in 11 states 255 Total Number of Observers of Number Total From 1995 to 2012 it is necessary to enforce the voting guarantees of the 14th and 15th Amendments during the it is necessary to enforce incident. and submitted them to DOJ. The Voting Section reviewed these reports to determine whether these reports Section reviewed and submitted them to DOJ. The Voting attorneys, who deterred and at times could address intimidating or discriminatory acts at intimidating or discriminatory and at times could address attorneys,deterred who covered by Section 4(b) have been certified by the Attorney by of federalcovered General for appointment observers were to be sent, the DOJ Voting Section looked at where it was likely that minority Section looked at where to be sent, the DOJ Voting observers were action should be taken. further enforcement course of a case or after a finding of intentional racial voting discrimination. to send federal observers to the polls where such activities might take place. Where DOJ Where such activities might take place. to the polls where to send federal observers an observed could also ensue from lawsuit enforcement occurring. An the time they were was concerned about potential problems on Election Day it frequently sent observers or sent observers on Election Day it frequently was concerned about potential problems tional violations regarding racial or ethnic voting discrimination. tional violations regarding servers where the court finds Under Section 3(a) of the VRA, a federal court may authorize observers where voters would confront barriers or intimidation. Federal observers wrote reports of what they saw, of what they saw, reports barriers or intimidation. Federal observers wrote voters would confront Section 4(b) of the VRA, if the Attorney General believed it was necessary to prevent constitu Section 4(b) of the VRA, if the Attorney General believed it was necessary to prevent , the Attorney General could send observers to political subdivisions covered underCounty, the Attorney General could send observers to political subdivisions covered Federal Observers Deter Voter Intimidation Deter Observers Federal Another reason that DOJ has brought few intimidation cases has been because of its ability cases has been because of its few intimidation that DOJ has brought Another reason

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258

- 256 257 Jurisdictions with Observer Coverage Observer with Jurisdictions From 1995 to 2012 With Non-White Percentage of Voting Age Population members in the polling place on Election Day. Rights Act. After all, there’s no other way for the law enforcement function of there’s After all, Act. Rights and intimidation and disenfranchisement of racial and language minority group and intimidation and disenfranchisement of racial and language minority the Justice Department to be able to be performed with regard to harassment the Justice Department to be able to be performed with regard to the existence of Federal observers is crucial, and it’s irreplaceable in the Voting Voting irreplaceable in the and it’s observers is crucial, the existence of Federal immediately. As testimony given during the 2006 VRA reauthorization hearings by a long-time the 2006 VRA reauthorization As testimony given during immediately. attorney with the Voting Section indicated, Section attorney Voting with the observers: Alabama (22 counties), Alaska (1 county), Arizona (4 counties), Georgia (29 coun Georgia (29 Arizona (4 counties), Alaska (1 county), Alabama (22 counties), observers: cuss the problem with local officials, or if that is not sufficient, the Civil Rights Division may in- cuss the problem ties), Louisiana (12 parishes), Mississippi (51 counties), New York (3 counties), North Carolina North Carolina (3 counties), York parishes), Mississippi (51 counties), New ties), Louisiana (12 tervene with local officials directly. Reports can also be used for future litigation if necessary. Reports can also be used for future tervene with local officials directly. tory acts or engaging in harassment. Their presence also allowed for problems to be addressed to be addressed for problems also allowed in harassment. Their presence tory acts or engaging Observers report problems to a Civil Rights Division attorney problems at DOJ who can immediately dis- Observers report Observers deterred election officials and others present at the polls from conducting discrimina from conducting present at the polls officials and others election Observers deterred (1 county), South Carolina (11 counties), South Dakota (1 county) and Texas (18 counties). and Texas counties), South Dakota (1 county) (11 (1 county), South Carolina Thousands of observers have been deployed in the years since 1995. have been deployed in the years Thousands of observers

261 260

259 ruling. However, Shelby County ruling. However,

263 Pew studies have found that indeed Hispanics (22 percent), blacks (23 percent) (23 percent) blacks Pew studies have found that indeed Hispanics (22 percent), 262 defined partisan interests, the King Street Patriots, through its project True the through its project Patriots, the King Street defined partisan interests, harassed Latino voters and others at the polls in Southbridge, Massachusetts. harassed Latino voters and others at the polls in Southbridge, communities of color during early voting in Harris County [Texas.] […] In a communities of color during early voting in Harris County [Texas.] 2011 special election in Massachusetts, a Tea Party group was reported to have Party Tea a 2011 special election in Massachusetts, Vote, was observedvoters at multiple polling locations serving intimidating Vote, [In 2010] an organized and well-funded Texas-based organization with Texas-based [In 2010] an organized and well-funded no longer has that legal authority under the Supreme Court’s Court’s the Supreme no longer has that legal authority under have to wait for federal assistance to come after the fact. Monitors play the important role of Monitors play the important role assistance to come after the fact. have to wait for federal homes. multi-generational family household. - African-American, and increas predominantly instances those that are places, in numerous rely on a fair process now, rather than waiting for litigation later.” rather than waiting for litigation now, on a fair process rely ingly, Latino- or student-heavy. ingly, ing voters on the basis, for example, that six or more people were living at the same ad- people were ing voters on the basis, for example, that six or more sending federal observers into polling stations in Section 4(b) jurisdictions, believing that it 4(b) jurisdictions, believing that it into polling stations in Section sending federal observers section of the VRA, “discrimination at the polls remains a problem. Where jurisdictions have Where a problem. “discrimination at the polls remains section of the VRA, and Asians (25 percent) are all significantly more likely than whites (13 percent) to live in a likely than whites (13 percent) all significantly more are and Asians (25 percent) addressing concerns compliance, so that voters can racial discrimination and ensuring about addressing a record of discrimination or current threats exist to ballot access, minority voters should not exist to ballot access, threats of discrimination or current a record at its national summit that “his recruits’ job is chiefly to make voters feel like they’re ‘driving job is chiefly to make voters feel like they’re at its national summit that “his recruits’ has been a featured Fritton of Judicial Watch and seeing the police following you.’” Tom one that has been used quite often throughout the darker side of our voting history: vote the darker one that has been used quite often throughout will use places. This is a technique by which a group challengers at heavily minority polling one million monitors to man the polls on Election Day. The group’s national recruiter declared declared national recruiter The group’s one million monitors to man the polls on Election Day. the jurisdictions covered by Section 3(a) court orders are unaffected. are orders by Section 3(a) court the jurisdictions covered In 2012, True the Vote announced that it would ramp up its activities, claiming it would recruit it would recruit announced that it would ramp up its activities, claiming the Vote In 2012, True Unfortunately, at the time of this Report’s publication, it appears that DOJ has suspended appears that DOJ has suspended publication, it at the time of this Report’s Unfortunately, dress. Minority citizens are much more likely to live in multiple family and multi-generational much more citizens are Minority dress. voter lists and send volunteers to challenge the eligibility of voters at pre-selected polling the eligibility of voters at pre-selected voter lists and send volunteers to challenge One of most frequently-used methods of voter intimidation in contemporary times is actually methods of voter intimidation in contemporary times is actually One of most frequently-used A joint report by Demos and Common Cause reports the following: reports by Demos and Common Cause A joint report As Congressman John Conyers described at a hearing regarding the reauthorization of this of the reauthorization regarding at a hearing John Conyers described As Congressman - challeng activists were the Vote NCVR hearing noted that True A witness at the Texas Voter Challenges

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NATIONAL COMMISSION ON VOTING RIGHTS 182 At the NCVR Texas state hearing, Maureen Haver, a Common Cause Texas Board Director, testified about voter suppression tactics deployed in Harris County during the 2010 election cycle. PHOTO CREDIT: SAMUEL WASHINGTON

guest at True the Vote events, telling recruits prior to the 2012 election that “‘[w]e are con- cerned that Obama’s people want to be able to steal the election in 2012’” with the “’illegal alien vote’” and a “‘food stamp army.’”264

In Massachusetts, NCVR heard testimony that local “voter integrity” groups in 2012 had ob- servers challenging the ballots of those who brought someone to the polls to help them vote, anyone who was speaking Spanish, and people with Spanish sounding last names. In addi- tion, according to testimony, “observers were directly confronting and engaging with voters in an intimidating manner, they were photographing their identification when it was presented to poll workers, and they were videotaping people.”265

In North Carolina in 2012, the State Board of Elections itself reported a number of complaints about voter challenges and intimidation and issued a directive to county boards on how such activities should be stopped. The Board was compelled to clarify the illegal nature of such acts. The Board reported that campaign and party supporters were breaching the buffer zones of polling places and approaching voters, using aggressive and profane language in some instances. It further reported on a series of deceptive practices, including voters being told that they can vote by phone or online; that if they affiliated with a certain political party that they must vote on Wednesday, November 7, instead of Tuesday, November 6; that if they have an outstanding ticket they cannot vote; and that they are required to re-register in order to vote.266

The new all-encompassing election law passed in North Carolina may facilitate large-scale voter challenge efforts because challengers are no longer required to live in the precinct where they issue challenges. At the March 28, 2014 NCVR hearing in North Carolina, the Legal Director of the ACLU of North Carolina related that,

272

269

On Election Day, more more On Election Day, 267 268 The district court further related that The district court further related 270

271 in Buncombe County. […] All of those challenges were to voters living in 11 those challenges were to voters All of […] in Buncombe County. precincts in the city center of Asheville, which is the only place in Buncombe which is the only place Asheville, center of precincts in the city County that has a sizable African-American population. African-American a sizable County that has [j]ust last night in Buncombe County Voter Integrity Project challenged over Project challenged Integrity Voter County night in Buncombe [j]ust last 180 voters on the voter rolls in Buncombe County. [T]here are 80 precincts [T]here are 80 precincts voter rolls in Buncombe County. 180 voters on the hours were over,” as well as “of white voting officials using racial epithets to describe African- as well as “of white over,” hours were misconduct over two election cycles, most of which were unrelated to noncitizens. Only unrelated misconduct over two election cycles, most of which were - prior to reautho Holder noted that Congress, The district court in Shelby County v. behavior. were home state of Alabama, there testimony that “[i]n Shelby County’s rizing the VRA, heard the… voting on African-American voters before of voting officials closing the doors reports issued in May, 2014 in which he announced finding a total of 117 possible cases of election issued in May, inspectors required those voters to take a citizenship oath as prerequisite to voting. voters to take a citizenship oath as prerequisite those inspectors required including one instance in which a local poll official remarked while remarking in the presence presence remarking in the while remarked poll official including one instance in which a local November 2, 1999 general election, leading to a consent order. general election, leading to a consent November 2, 1999 stored—with six convictions, four dismissals, and one trial acquittal at the time of the release six convictions, four dismissals, and one trial acquittal at the time of the release stored—with ship, either before or after they had signed their applications to vote. As a result, election or after they had signed their applications to vote. As a result, ship, either before a DOJ official “described the harassment of black voters by white poll officials in Alabama, a DOJ official “described the harassment and other people officially associated with elections operations who engage in intimidating and other people officially associated - convictions who had voted but had not applied to the governor to get their voting rights re - calling itself “Citizens for a Better Hamtramck” on the basis of citizen challenged by a group of a federal observer,” using a derogatory slur, that African-Americans, “don’t have principle that African-Americans, “don’t slur, a derogatory using of a federal observer,” be allowed.” enough to vote and they shouldn’t cording to the ACLU, none of them indicate any intent by the individual to commit fraud. to cording from two people that armed investigation agents showed up at their homes—after having two from than 40 voters who were dark skinned or appeared to be of Arab background had been to be of Arab background or appeared dark skinned were than 40 voters who In Iowa, the activities of the Secretary of State appear to have created an intimidating climate. of State appear to have created In Iowa, the activities of the Secretary questioned their friends, family, and neighbors—and demanded papers proving citizenship. and neighbors—and demanded papers proving questioned their friends, family, While private individuals at the polling place are often a problem, sometimes it is poll workers often a problem, place are While private individuals at the polling voter registration list has had an intimidating effect. The organization recounted having heard recounted having heard list has had an intimidating effect. The organization voter registration Secretary of State Matt Schultz ordered a two-year investigation that culminated in a report a two-year investigation that culminated in a report of State Matt Schultz ordered Secretary So far only a handful of charges have been brought as a result of this investigation, and ac- as a result So far only a handful of charges have been brought State’s long-running and costly investigation into the alleged presence of noncitizens on the of noncitizens long-running and costly investigation into the alleged presence State’s Other Recent Forms of Intimidation 27 people have been charged with a crime—half of whom were persons with prior felony 27 people have been charged with a crime—half of whom were American voters in the presence of federal observers.” American voters in the presence As described in Chapter 7, in Hamtramck, Michigan, DOJ filed a complaint after the 7, in Hamtramck, Michigan, DOJ As described in Chapter According to testimony from the ACLU of Iowa provided to the NCVR, the Iowa Secretary of to the NCVR, the Iowa Secretary the ACLU of Iowa provided to testimony from According

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NATIONAL COMMISSION ON VOTING RIGHTS 184 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 185

- - 275 ennessee in , T The law had also stipulated that those naturalized 276

Schultz had used federal grant money to hire an investigator to conduct the to conduct an investigator money to hire used federal grant Schultz had 274 273 must be able to read, write, and speak basic English. The slide also noted that the proper write, and speak basic English. The slide also noted that the proper must be able to read, right to vote. is to challenge that voter’s citizenship is questioned when a voter’s procedure investigation. ing in Nashville, Eben Cathey from the Tennessee Immigrant and Refugee Rights Coalition Immigrant the Tennessee Cathey from ing in Nashville, Eben of the report. found unconstitutional an Ohio statute allowing any election judge to challenge any voter’s any voter’s found unconstitutional an Ohio statute allowing any election judge to challenge their naturalization certificate in or any naturalized citizen to produce citizenship and requiring that only citizens are allowed to vote, incorrectly implying that to be eligible to vote people implying that to be eligible to vote people incorrectly allowed to vote, that only citizens are testified about the poll worker training that had taken place in Davidson County poll worker training that had taken testified about the Boustani v. Blackwell, a 2006 case, a federal district court In Boustani v. ways that could be suppressive. workers to act in ways that could be intimidating and deter voters. At the Commission’s hear voters. At the Commission’s that could be intimidating and deter workers to act in ways In other cases, state legislatures have passed laws that would require poll workers to act in have passed laws that would require In other cases, state legislatures In Tennessee, the NCVR learned of ways in which election officials were actually training poll actually training the NCVR learned in which election officials were of ways In Tennessee, der to be eligible to cast a regular ballot. der to be eligible to cast a regular 2012. He showed NCVR a slide (shown below) from the training that reminded poll workers poll workers the training that reminded NCVR a slide (shown below) from 2012. He showed Slide image submitted by Eben Cathey with the Tennessee Immigrant Rights Coalition at the NCVR Nashville Slide image submitted by Eben Cathey with the Tennessee hearing. The slide was used in a poll worker training in Davidson County. regional

277 The court further found The court further found 278

The court concluded by expressing “grave” The court concluded by expressing 280 279 PHOTO CREDIT: JOHNNY SUNDBY PHOTO CREDIT: judges or poll workers to profile voters—using their unbridled discretion to challenge based to challenge voters—using their unbridled discretion judges or poll workers to profile PHOTO CREDIT: ALLISON MEDER PHOTO CREDIT: interest requiring the measure. The court found no compelling justification for the distinction The court found no compelling the measure. requiring interest Noting that the law facially discriminated against naturalized citizens with regard to their right citizens with regard facially discriminated against naturalized Noting that the law attempting to exercise a citizenship privilege.” attempting to exercise a certificate of naturalization could not stand. a certificate of naturalization could not concernof implementing the statute as it gave wide latitude to election about the effects or manner”—and found it “offensive to single out a on “appearance, name, looks, accent citizens whose eligibility was challenged but who were unable to provide a naturalization a naturalization unable to provide were challenged but who eligibility was citizens whose which would only be counted if the ballot, to cast a provisional required be certificate would of Elections within ten days. information to the Board to submit additional citizen were for the statute to be valid the State would need to demonstrate a compelling governmental valid the State would need to demonstrate for the statute to be made clear that second-class citizens, the court in Boustani casting them as to vote, thereby a lost or otherwise unavailable certificate of naturalization costs that because replacing to voting “no relation twenty dollars, and the ability to pay this price bore and two hundred drawn by the State between naturalized and native-borndrawn by the State citizens. to produce requirement the a fundamental right of the citizenry,” qualifications and burden[ed] voter in the public polling place, thereby subjecting him to embarrassment or ridicule while subjecting him to voter in the public polling place, thereby rights. This is the testing ground. This is today’s Selma. This is what people would like, if they pass like, This is what people would Selma. is today’s This This is the testing ground. rights. and get away [with] here, what some would like to see around the country…” what some would like to see around the country…” and get away [with] here, Moral Mondays movement.

–Dr. Reverend William Barber, President of the NC NAACP State Conference and leader of the State’s the State’s President of the NC NAACP State Conference and leader of William Barber, Reverend –Dr. “The truth is that here in North Carolina we are the canaries in the coal mine of a rollback of voting “The truth is that here in North Carolina we are the canaries in the coal mine of

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CHAPTER 6 186 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6 NATIONAL COMMISSION ON VOTING RIGHTS 187187

283 e primary elec-

282 Civil rights groups sued Kitzman for voter intimidation under Civil rights groups 285

and the Supreme Court summarily affirmed. and the Supreme 284 281

286 not required of other registrants. The questionnaire effectively precluded most students from most students from precluded effectively The questionnaire of other registrants. not required ments had involved an instance where a father and son with the same name had voted in the a father and son with the same name had voted in the ments had involved an instance where plan by the Commissioners’ Court of Waller County. The DOJ’s objection was based on the The DOJ’s County. Waller plan by the Commissioners’ Court of to include many of the Prairie View A&M students in the population failure plan’s redistricting in a malapportionment. resulting County, of Waller base for the reapportionment registering to vote. Several lawsuits were brought challenging the practice. The U.S. District challenging the practice. brought to vote. Several lawsuits were registering repeatedly taken actions that interfered with the voting rights of students at Prairie View with the voting rights of students A&M. taken actions that interfered repeatedly scrutinized, all 19 indictments were thrown out due to the lack of evidence. One of the indict- thrown scrutinized, all 19 indictments were Prairie View A&M students to vote, drafting a letter to the editor of the local paper publicly allegedly voting twice, once in their hometown and once at the school. After groups asserted and once at the school. After groups allegedly voting twice, once in their hometown a small rural county outside of Houston. Over the past four decades, county officials have outside of Houston. Over the past a small rural county and voted in Waller County. and voted in Waller tions, the Waller County Commissioners’ Court voted to reduce the availability of early the availability County Commissioners’ Court voted to reduce tions, the Waller that the indictments were an act of voter intimidation and the district attorney’s actions were actions were the district attorney’s an act of voter intimidation and that the indictments were tactics aimed at making voting more difficult. Prairie View A&M is located in Waller County, County, Waller Prairie difficult. View A&M is located in voting more tactics aimed at making to vote. In 1992, the local district attorney, Buddy McCraig, indicted 19 Prairie View Buddy McCraig, indicted A&M students for In 1992, the local district attorney, In the 1970s, the County required college students wishing to register to vote to complete a college students wishing to register In the 1970s, the County required In 2003, a subsequent district attorney, Oliver Kitzman, also challenged the eligibility of In 2003, a subsequent district attorney, different locations. different questioning the eligibility of students and threatening to prosecute students if they registered students if they registered to prosecute questioning the eligibility of students and threatening Waller County, Texas for full and equal voting opportunities is illustrative of the evolution of full and equal voting opportunities is for Texas County, Waller voting at the polling place closest to campus, from 17 hours over two days to six hours in voting at the polling place closest to campus, from Shortly after the Section 11(b) lawsuit was filed in 2004, and a month befor Section 11(b) of the VRA, and Kitzman agreed to a consent decree affirming students’ right to a consent decree Section 11(b) of the VRA, and Kitzman agreed Court for the Southern District of Texas court invalidated the practice as a violation of the court invalidated Court for the Southern District of Texas Case SpotlightCase 26th Amendment, A&M UniversityA&M Around the same time, DOJ, relying on Section 5 of the VRA, blocked a 1975 redistricting on Section 5 of the VRA, blocked a 1975 redistricting the same time, DOJ, relying Around The longstanding struggle of students at historically-black Prairie View of students at historically-black The longstanding struggle University in A&M The Long Struggle Rights Voting for at Prairie View “Questionnaire Pertaining to Residence,” which asked students various additional questions Pertaining to Residence,” which asked students various additional questions “Questionnaire

288 PHOTO CREDIT: Samuel Washington PHOTO CREDIT:

287 290 Even as late as summer 2013, there was still no polling site on the Prairie was still no polling site Even as late as summer 2013, there 289 - unpro verification, numerous voter registration lenged as having been cast without proper miles from campus, for the November general election. Following pressure from activists from election. Following pressure campus, for the November general miles from implementation of the change without preclearance, and the County restored the early vot- and the County restored the change without preclearance, implementation of of the to have been critical to the outcome voting hours appear ing hours. Those restored students’ spring break, so students would have to vote early if they planned on leaving town have to vote early if they planned so students would students’ spring break, site to a different location one mile from campus, but declined to create an on-campus create campus, but declined to location one mile from site to a different complaining of the lack of an on-campus voting option. The letter successfully pressured voting option. The letter successfully pressured complaining of the lack of an on-campus center in September 2013. one day. This was particularly significant because the primary was scheduled during the scheduled during the primary was significant because was particularly This one day. action seeking to prevent 5 enforcement filed a Section Civil rights groups for the break. the early voting option View 300 Prairie A&M students exercised election, as approximately the Commissioners’ Court, which finally agreed to install a polling site at the campus student to install agreed the Commissioners’ Court, which finally cessed voter registration applications were uncovered in the Election Office. uncovered applications were cessed voter registration the voting rights of Prairie View A&M students. the Commissioners’ Court narrowly prevailed. Court narrowly the Commissioners’ who sought an on-campus voting location, the County agreed to move the early voting the County agreed who sought an on-campus voting location, In 2008, the County initially decided to offer only one early voting site, which was seven In 2008, the County initially decided In 2006, after more than 700 votes cast at the city of Prairie View polling station were chal- than 700 votes cast at the city of Prairie View polling station were In 2006, after more Without Section 5’s protections, it may be difficult to respond as effectively to new threats to threats respond as effectively to new it may be difficult to protections, Without Section 5’s voting option. (compared to only 60 on primary day), and a Prairie View to only 60 on primary ran for a seat on A&M student who (compared View A&M campus. In July 2013, students drafted a letter to the Texas Secretary of State of Secretary Viewstudents drafted a letter to the Texas A&M campus. In July 2013,

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 6

NATIONAL COMMISSION ON VOTING RIGHTS 188 “In 2012 […] less than one- third of eligible youth went out to the polls in Texas. […] And 36 public institutions of higher education […] and dozens of quality private universities are available here in Texas, yet the voices of young people are still not being heard…”

Crystal Sowemimo, an intern for the Texas Public Interest Research Group, speaking on youth voter turnout in Texas. (NCVR Texas Hearing) “I became a U.S. citizen on November 20th, 2013. I registered to vote right away. But I’m always afraid when I go to vote. No one will be able to speak Mandarin and help me if I have questions. Also at the Registrar Office, they should have staff who speak in Asian language[s] to help us understand the proposition that we are voting for. Many seniors like me want to vote. But we don’t want to make mistakes when we vote. We also don’t want to be treated with disrespect at voting place[s] because we do not speak English well.”

–Su Fang Gao, an 80-year-old public witness, testified in Cantonese about the need for staffing polling sites with workers who speak Chinese languages. (NCVR California state hearing) PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 7 NATIONAL COMMISSION ON VOTING RIGHTS 191 This is a 148 equired contin- equired 1 The covered minority The covered 3 ed discrimination is through through ed discrimination is e it is legally r As language minority communities continue to grow in the coming decades, to grow As language minority communities continue 2 ing information such as registration and voting notices, forms, instructions, polling site ing information such as registration assistance, and ballots in the applicable minority group language. assistance, and ballots in the applicable minority group groups under these provisions are voters who are of Spanish heritage, or are Asian Ameri- of Spanish heritage, or are voters who are are these provisions under groups cans, American Indians, or Alaska Natives. places an affirmative obligation on covered jurisdictions to provide all vot- jurisdictions to Section 203 places an affirmative obligation on covered

however, lack of compliance with these legal protections is not uncommon. The denial or is not uncommon. The lack of compliance with these legal protections however, nated against those voters. Congress imposed affirmative obligations on those jurisdictions imposed affirmative nated against those voters. Congress problem, beginning in 1975, Congress found that the use of English-only elections in jurisdic- beginning in 1975, Congress problem, percent increase since 1980. Moreover, the trends indicate that these numbers will only con- the trends Moreover, since 1980. increase percent insufficiency of language assistance in certain jurisdictions wher insufficiency of language assistance it will be crucial to ensure that they are equal participants in the democratic process. in the democratic process. equal participants that they are it will be crucial to ensure PROFICIENT CITIZENS ues to deny language minority groups equal access to the polls. equal access to the ues to deny language minority groups somewhere between 64 and 68 million people in the United States who do not primarily speak between 64 and 68 million people somewhere English at home. or a voter registration form to effectively participate in the electoral process. Recognizing this process. to effectively participate in the electoral form or a voter registration tions with a significant number of limited-English proficient (LEP) voting age citizens discrimi- proficient tions with a significant number of limited-English in the language of the particular minority group. materials and language assistance to provide the use of English-only elections. It is difficult for a voter who cannot understand the ballot who cannot understand the ballot elections. It is difficult for a voter the use of English-only tinue to grow over the next decade and beyond. Experts predict that by 2020 there will be will that by 2020 there Experts predict over the next decade and beyond. tinue to grow I. FEDERAL VOTING PROTECTIONS FOR LIMITED ENGLISH VOTING PROTECTIONS FEDERAL I. One of the primary ways that minority language voters have suffer ways that minority language voters One of the primary Language Assistance for Limited Assistance for Language Citizens English-Speaking ficiently. Over 57 million adults speak a language other than English at home. Over 57 million adults speak a language other than ficiently. Voting Rights Act (VRA), including the following: Rights Act Voting CHAPTER 7 CHAPTER As discussed below, these language minority provisions have resulted in substantial progress; in substantial progress; have resulted these language minority provisions As discussed below, PHOTO CREDIT: ANDRIA LO PHOTO CREDIT: There are several federal voting protections for minority language citizens contained within the several federal voting protections are There - 25 million people in the United States who do not speak English pro over are there Today, • Drost Kokoye, a member of the public, spoke about the lack of minority language assistance at the Paragon Hills polling place in Nashville, Tennessee, at the NCVR Nashville regional hearing. PHOTO CREDIT: JOSEPH GRANT

Every five years, the Census Bureau applies a formula to determine which jurisdictions are covered under Section 203 and for which language groups. For a jurisdiction to be covered under Section 203, the number of LEP, voting age citizens from the group must be either:

»» More than five percent of all voting age citizens within a state or locality,

»» More than 10,000 in number within a political subdivision, or

»» In the case of a political subdivision that contains all or any part of an Indian reservation, more than 5 percent of the American-Indian or Alaska-Native voting age citizens within the Indian reservation.4

Additionally, the illiteracy rate of such language minority citizens in the jurisdiction must be higher than the national illiteracy rate.5 Currently 25 states are either fully or partially covered by Section 203.

• Section 4(e) protects the right to vote of United States citizens educated in a language other than English in American-flag schools in any state, territory, the District of Columbia, or Puerto Rico. The provision provides that these citizens’ voting rights cannot be denied because of their inability to read, write, understand, or interpret English.6

• Section 208 provides that “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance 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 voter’s union.”7 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 7 NATIONAL COMMISSION ON VOTING RIGHTS 193 ess

10 9 ovide language assistance ovide language assistance egistration rate lower than egistration rate lower esponsive to the problems of esponsive to the problems The primary focus of this provision is on citizens who received their who received is on citizens The primary focus of this provision 8 Congress found it imperative to institute legal protections to ensure that to ensure found it imperative to institute legal protections Congress 11 dominant language is other than English. In addition they have been denied dominant language is other than English. severe disabilities and continuing illiteracy in the English language. severe disabilities and continuing illiteracy national in scope. Such minority citizens are from environments in which the Such minority citizens are from environments in national in scope. equal educational opportunities by State and local governments, resulting in resulting equal educational opportunities by State and local governments, voting discrimination against citizens of language minorities is pervasive and i.e., jurisdictions that held English-only elections and had a r held English-only elections and had i.e., jurisdictions that under Section 4(f)(4). Regardless, most of the Section 4(f)(4) jurisdictions are still obligated still most of the Section 4(f)(4) jurisdictions are under Section 4(f)(4). Regardless, eliminated Section 5 preclearance for these jurisdictions but did not address the law’s the law’s for these jurisdictions but did not address 5 preclearance eliminated Section to pr it applies to the affirmative obligation constitutionality as group—were subject to Section 5 preclearance and were required to provide the same to provide required and were subject to Section 5 preclearance group—were types of language assistance as specified by Section 203. The Shelby County decision assistance as specified by Section types of language to provide language assistance under Section 203. language assistance under Section to provide 50 percent or a turnout rate lower than 50 percent for the November 1972 elections and for the November 1972 or a turnout lower than 50 percent rate 50 percent a minority language from were of the voting age citizens than five percent more where decision. Jurisdictions covered under the Section 4(b) formula— under the covered Holder decision. Jurisdictions County v. , is uncertain in light of the Shelby , is uncertain Section 4(f)(4) provision, of one other The applicability

language minority citizens are afforded equal access to voting, as required by the Fourteenth required equal access to voting, as afforded language minority citizens are language other than English cannot be denied the right to vote because of his or her inabilitylanguage other than English cannot be language minority citizens. Congress found that these protections were necessary because were found that these protections language minority citizens. Congress minority citizens: Section 4(e). This provision provides that an eligible voter who was educated provides minority citizens: Section 4(e). This provision up to the sixth grade in an American public school where the instruction was conducted in a the instruction was conducted public school where up to the sixth grade in an American and Fifteenth Amendments to the United States Constitution. Among other things, Congr and Fifteenth Amendments to the United States Constitution. Among other New York’s English literacy under Section 4(e) ended New York’s education in Puerto Rico. A challenge test, which had been utilized to disenfranchise Puerto Rican voters in New York. test, which had been utilized to disenfranchise these minorities,” to read or write English. to read tory based on the conditions found by Congress at the time. at the time. Congress tory based on the conditions found by In 1975, Congress expanded the Voting Rights Act to provide significant legal protections for significant legal protections Rights Act to provide expanded the Voting In 1975, Congress Since “states and local jurisdictions have been disturbingly unr Proficient Citizens Proficient 1975: Significant Expansion of the VRA to Protect Limited English of the VRA to Protect Limited Expansion 1975: Significant 1965: Limited Protections for Language Minorities for Language Protections 1965: Limited The original Voting Rights Act included a limited, yet important, provision for some language important, provision Rights Act included a limited, yet The original Voting The scope of the minority language provisions has changed over the course of the VRA’s his- over the course of the VRA’s has changed The scope of the minority language provisions • -

12 oting ed to Congress Congress e hir 20 - reau ovisions were and acknowledging its “obli- 19

13

17

15 As a result, Native Americans and Asian Americans were also covered under also covered were Native Americans and Asian Americans As a result, Preclearance and federal observer protections were therefore extended to any therefore were protections and federal observer Preclearance 16 14 Finding that “[u]nless they have access to materials in a language they can understand, Finding that “[u]nless they have access to materials in a language they can 18 jurisdiction in which more than 5 percent of voting age citizens were of a single language age citizens were of voting percent than 5 more jurisdiction in which not permit bilingual poll workers to speak Spanish when that was what they wer not permit bilingual poll workers to speak Spanish when that was what they neighbors.” minority Americans clearly cannot exercise their right to vote” minority Americans clearly cannot exercise minority, election materials had been prepared only in English in the 1972 presidential elec- only in English in the 1972 presidential election materials had been prepared minority, elections. presidential reauthorized the language assistance provisions for another 10 years. the language assistance provisions reauthorized information relating to the electoral process, including ballots… in the language of the appli- ballots… in the language of the including process, to the electoral information relating Notably, the 1975 amendments also established that in some jurisdictions English-only elec that in some jurisdictions the 1975 amendments also established Notably, However, hostility and insufficient compliance with the language provisions continued. For insufficient compliance with the language hostility and However, Rights Act. ability of language assistance for language-minority voters, such as “election officials who did ability of language assistance for language-minority voters, such as “election added Section 203, which places affirmative language access obligations on jurisdictions language access affirmative 203, which places added Section gation to erase discrimination against Hispanic Americans and other minorities,” example, U.S. Representative Robert Garcia testified in 1982 about the continuing unavail- Robert Garcia example, U.S. Representative over the prior four years. citizens, Congress also found “evidence that although other language groups do not suffer also found “evidence that although other language groups citizens, Congress which has been demonstrated for persons the same pervasive voting discrimination from and vote in fewer numbers than their English-speaking of Spanish origin, they do register cable minority group as well as in the English language.” as well as in cable minority group thorized in 1982. During the debates surrounding reauthorization, Congress learned that in Congress reauthorization, surrounding thorized in 1982. During the debates tions constituted a “test or device” for purposes of coverage under Section 4(b) of the V “test or device” for purposes of coverage tions constituted a tion, and less than 50 percent of voting-age citizens had registered for or voted in the 1972 of voting-age citizens had registered tion, and less than 50 percent the VRA’s language assistance provisions. the VRA’s to provide “registration or voting notices, forms, instructions, assistance, or other materials or forms, instructions, assistance, or voting notices, “registration to provide do.” Originally enacted for a seven-year period, the language assistance pr Originally enacted for a seven-year period, American voter registration and a 30 percent increase in Hispanic elected officials in Texas in Hispanic elected officials in increase and a 30 percent American voter registration Although the additions to the VRA were intended primarily to assist Spanish-speaking intended primarily Although the additions to the VRA were 1982: Reauthorization of Language Provisions for Ten Years for Ten Provisions of Language 1982: Reauthorization Texas the language assistance provisions contributed to a 64 percent increase in Mexican- increase contributed to a 64 percent the language assistance provisions Texas

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CHAPTER 7

NATIONAL COMMISSION ON VOTING RIGHTS 194 Guest Commissioner Kathay Feng, Executive Director of California Common Cause, received testimony at the NCVR California state hearing. PHOTO CREDIT: ANDRIA LO

1992: Extension of the Coverage Formula for Section 203

In 1992, Congress not only reauthorized the existing language assistance provisions but extended them to “provide coverage for jurisdictions with significant populations which cur- rently do not provide language assistance under Federal mandate.”21 It did this by extending the language assistance coverage formula to provide two additional criteria for coverage.

First, the 1992 amendments added the provision that a political subdivision is covered if “more than 10,000 of the citizens of voting age… are members of a single language minority and are limited-English proficient,”22 and if the illiteracy standard is also met. The House report explained that “[d]uring the period from 1982 until the present, the need for a numeri- cal benchmark became clear, so that jurisdictions with large language minority populations that do not meet the 5 percent trigger” could otherwise attain coverage.23 The House report found that—under the old formula—Latino, Asian-American and Native-American communi- ties were insufficiently protected.24 As such, the change was intended to address the fact that some language minority communities, though sizeable, are located in such populous areas that they do not constitute more than five percent of the population.25 This 10,000 citizen benchmark has been particularly crucial for Asian-American citizens. “After the 1982 reauthorization, no Asian-American community outside of Hawaii qualified for assistance. Under the 1990 census, only Chinese Americans in San Francisco County would qualify on the mainland… [A] 10,000-citizen benchmark [resulted in] coverage for three additional Asian languages and five additional counties, including three large counties in the State of New York.”26 - e

28 oups eservation ar and the illiteracy 27

Congress found that persistent Congress 31 35 Thus, the House report found, “the 5 percent trigger found, “the 5 percent Thus, the House report 30 The division of Native American communities across American communities across The division of Native 29

38 While the language assistance provisions had produced a “closing of the had produced While the language assistance provisions 33 Congress recounted numerous examples of the barriers to literacy and numerous recounted Congress 32 and had not proved to be burdensomely costly, to be burdensomely and had not proved The House Judiciary Committee Report accompanying the bill detailed a litany of 34 It noted that the It noted Department Justice of (DOJ) had litigated an increased number 36 37 justified the language assistance provisions’ further extension. justified the language assistance provisions’ has proven to be ineffectual in the Native American context.” to be ineffectual in the Native American has proven notices, and ballots, in response the needs to demonstrated limited by English speaking multiple states or political subdivisions allowed even areas with a relatively strong Native Native strong with a relatively allowed even areas multiple states or political subdivisions participation faced by non-English speakers, such as the fact that in 1991, Latinos age 25 participation faced by non-English speakers, provided” members of a single language minority and are limited-English proficient,” language minority and are members of a single bilingual election materials butalso bilingual election assistance, including oral assistance problems facing with voters limited English proficiency littleand/or education.example,For ballots. participation.” it recounted testimony that during the 2004 election Arizona, in Pima County, many LEP Natives—continue to experience educational inequities, high illiteracy rates and low voting Natives—continue to experience educational standard is met. Experience had shown, the House report stated, that “the American Indian stated, that “the American Indian shown, the House report is met. Experience had standard Reservations, which have relatively small populations, often have boundaries that do not small populations, often have boundaries have relatively Reservations, which Latino were denied voters equal access the electoral to process a lack due bilingual to of - also reau Congress of the language assistance provisions, Beyond expanding the reach and Alaska Native populations were not receiving the type of assistance they needed.” receiving not populations were and Alaska Native all or any part of an Indian reservation,” a jurisdiction is covered if “more than 5 percent of than 5 percent if “more a jurisdiction is covered Indian reservation,” all or any part of an and older had a high school graduation rate of only 51.3 percent, compared to 80.5 percent to 80.5 percent compared rate of only 51.3 percent, and older had a high school graduation and other written election and assistance, voting such as instructions, guides, forms, of Sectionof cases 203 since 2000, which the report described as “critical protecting lan to guage minority voters.” for non-Latinos. gap between Hispanic and Anglo voter registration in areas where language assistance is where in areas registration gap between Hispanic and Anglo voter coincide with county or state lines, as many reservations were established before the states established before were or state lines, as many reservations coincide with county existence. or counties came into citizens.” covered by section 203—Hispanics, Asian Americans, American Indians and Alaska by section 203—Hispanics, Asian Americans, covered the American Indian or Alaska Native citizens of voting age within the Indian r or Alaska Native citizens of voting the American Indian that covered jurisdictions “were required provide to language minorities with only not thorized them for an additional 15 years. It found that “the four language minority gr thorized them for an additional 15 years. In 2006, Congress reauthorized the provisions for an additional years,and 25 emphasized disparities in access to the electoral process between English and non-English speakers between English process disparities in access to the electoral Secondly, Congress also provided that “in the case of a political subdivision that contains that contains a political subdivision that “in the case of also provided Congress Secondly, 2006: Extension of Section 203 for 25 Years 203 2006: Extension of Section American presence to avoid coverage. American presence

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39 42 cent),

46 For example, one witness one example, For ease in voter participation 45 cent), Latinos (48 per

44

48 43 continued to lag behind to that of continued to lag behind 40 Moreover, Latino voter registration in covered counties in covered Latino voter registration Moreover, 47 the VRA’s language protections have positively influenced protections language the VRA’s 41 had the highest increase of new voter registration[s], approximately 58.7 percent. During 58.7 percent. approximately of new voter registration[s], had the highest increase participation increased [at] five times the national rate.” participation increased more than 10,000 LEP language minority voting age citizens, “the number of Asian-Ameri- than 10,000 LEP language minority voting more For Native Americans, between 1975 and 2013, in covered counties “[r]egistration and and 2013, in covered For Native Americans, between 1975 Following the 1992 extension of coverage under Section 203 to jurisdictions that had Following the 1992 extension of coverage assistance requirements in 1975. Additionally, between 1980 and 1990, Latino “voter in 1975. Additionally, assistance requirements cans registered to vote increased dramatically. Between 1996 and 2004, Asian-Americans dramatically. increased to vote cans registered turnout increased between 50 percent and 150 percent.” between 50 percent turnout increased that same period, Asian-Americans experienced an increase in turnout of 71 percent.” an increase that same period, Asian-Americans experienced The Latino voter registration rate has nearly doubled since the addition of the language The Latino voter registration

language minority communities that have historically been the targets of discrimination. communities that have historically been language minority lower than it would be when language assistance is not provided. not is assistance language when be would it than lower higher than non-covered counties.” higher than non-covered program, voter registration increased by 20 [percent] in the Filipino American community and by 20 [percent] increased voter registration program, is almost 15 percent higher than in non-covered counties. higher than in non-covered is almost 15 percent increased by 40 [percent] in the Vietnamese American community.” by 40 [percent] increased is 6 percent higher than those without such staff; counties that provide voting materials in higher than those without such staff; counties that provide is 6 percent PROFICIENT VOTERS PROFICIENT sions of the VRA, voter registration and turnout rates for Native Americans, Asian Americans, sions of the VRA, voter registration and American Indians and Alaska Natives (46.6 percent) and American Indians and Latinos have greatly increased: and Latinos have greatly county that is not covered; counties with Spanish-speaking staff see Latino registration that counties with Spanish-speaking staff see Latino county that is not covered; testified at the National Commission on Voting Rights (NCVR) California state hearing that, testified at the National Commission on things equal, a county covered under Section 203 has Latino voter turnout that is 11 percent under Section 203 has Latino voter turnout that is 11 percent things equal, a county covered whites (64.1 percent) in 2012, whites (64.1 percent) when language materials and assistance are provided—and by implication, participation is provided—and when language materials and assistance are II. PROGRESS AND BARRIERS FOR LIMITED ENGLISH FOR LIMITED BARRIERS AND PROGRESS II. - and turnout.voter participation the language assistance provi Following the enactment of Studies and surveys have nearly uniformly shown a substantial incr Studies and surveys have nearly uniformly Spanish have a 4 percent higher Latino voter registration rate; and, finally, that “[a]ll other rate; and, finally, higher Latino voter registration Spanish have a 4 percent Section 203 has a Latino voter turnout that is 15 percent higher than a similarly situated Section 203 has a Latino voter turnout that is 15 percent Although voter participation rates for Asian Americans (47.3 per rates for Asian Americans Although voter participation A recent study found that even controlling for other variables, a county that is covered by for other variables, a county that is covered study found that even controlling A recent The VRA’s language assistance provisions are essential to ensuring equal participation for essential to ensuring equal participation are assistance provisions language The VRA’s • • • “in San Diego County, [“in San Diego County, [language assistance] ] once the county adopted a comprehensive

A In 49

53 56 The memo 50 The same problem The same problem 52 equiring accommodations for equiring accommodations

51 55 language ballots in the City of Boston. He said, “The language ballots in the City of Boston. He said, is the biggest right that we enjoy as American citizens it’s lot of times when these citizens will go and vote, is for them to tell on the ballot which—which one hard PHOTO CREDIT: MEREDITH HORTON PHOTO CREDIT: Residents Association in Boston, testified at the NCVR the at testified Boston, in Association Residents hearing on the need for Chinese Boston regional that would occur when they’re trying to vote.” that would occur when they’re right to vote, and because of the language barrier, a right to vote, and because of the language barrier, a lot of mistakes maybe Bush or Obama, and there’s On the left, Henry Yee, Co-Chair of the Chinatown Co-Chair of the Chinatown On the left, Henry Yee, “Barack Obama” was misspelled as “Barack 54 The Commission further received testimony stating that the The Commission further received 57 large number failed to provide at least one element of the language assistance required. least one element of the language assistance at to provide large number failed languages during the 2012 election, including missing translated materials and the absence languages during the 2012 election, including missing translated materials noted that one in seven jurisdictions could not provide researchers registration materials registration researchers noted that one in seven jurisdictions could not provide memo provided to the Presidential Commission on Election Administration states flatly, flatly, on Election Administration states Commission to the Presidential memo provided impacted voters’ ability to cast a meaningful ballot. impacted voters’ ability in required languages, one in four did not have the necessary personnel to provide assis- personnel to provide languages, one in four did not have the necessary in required Massachusetts had to be reprinted when it improperly spelled the word “Alguacil” (Spanish spelled the word when it improperly Massachusetts had to be reprinted Despite its effectiveness, some jurisdictions continue to fail to comply with Section 203. A with Section continue to fail to comply jurisdictions effectiveness, some Despite its als, listing the election date as November 8 instead of November 6. als, listing the election date as November attorney for the Voting Rights Project of Asian Americans Advancing Justice of Los Angeles, Rights Project attorney for the Voting for “sheriff”) as “Aguacil” (Spanish for “dragonfly”). cites numerous recent problems, including poor and inaccurate translations that could have inaccurate translations that could including poor and problems, recent cites numerous of bilingual poll workers. of the voter initiative on same-sex marriage. tance, and one-third failed to provide either translated materials or bilingual personnel. failed to provide tance, and one-third told the Commission of serious failures to comply with Section 203 obligations for Asian told the Commission of serious failures was repeated on Spanish-language bookmarks distributed at a voter-education event. distributed at a voter-education on Spanish-language bookmarks was repeated In another memo for the Presidential Commission on Election Administration, it was In another memo for the Presidential voters of limited English proficiency, the need for assistance is often unmet.” the need for assistance proficiency, voters of limited English Osama” on New York’s absentee ballots for Spanish speakers in 2008, and a 2010 ballot in Osama” on New York’s 2005 study found that of jurisdictions covered for an Asian, Spanish, or Native language, a for an Asian, Spanish, or Native language, that of jurisdictions covered 2005 study found 2012, the Spanish translation of Maryland’s ballot summary misstated the proposed effect effect the proposed ballot summary misstated 2012, the Spanish translation of Maryland’s Arizona published the wrong election date in the Spanish translation of official election materi- election date in the Spanish Arizona published the wrong Additionally, at the California Deanna Kitamura, a senior staff state hearing of the NCVR, Additionally, There are several recent examples of significant translation errors. In 2012, Maricopa County, In 2012, Maricopa County, of significant translation errors. examples several recent are There “Despite an array of federal, state, and local laws and practices r federal, state, and local laws and practices “Despite an array of

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59 equir 60 58 namese, two involved Korean, one involved Japanese, one involved Bengali, one involved namese, two involved Korean, 46 matters involved Spanish. Tagalog, and one involved Ilocano. Tagalog, Ten discrete matters involved Asian languages: Seven involved Chinese, four involved Viet matters involved - discrete Ten

litigation summaries below, highlight the need to continue working to ensure true equal and true equal highlight the need to continue working to ensure litigation summaries below, languages and states involved). A great majority of these cases involved Spanish-speaking languages and states involved). A great meaningful access to voting throughout the United States. meaningful access to voting throughout ments (matters) throughout the United States (see Table 4 in Chapter 2 for a table outlining the the United States (see Table ments (matters) throughout interpreters for the entire city… [In] South Philadelphia… there was long lines of Vietnamese- was long there city… [In] South Philadelphia… for the entire interpreters in Philadelphia. The City agreed to provide voting assistance in Chinese, Khmer, Korean, Korean, assistance in Chinese, Khmer, voting provide to City agreed in Philadelphia. The Between 1995 and 2014, there have been 58 successful language minority cases and settle- Between 1995 and 2014, there Legal Defense and Education Fund, talked about voting accessibility for language minorities accessibility for language minorities Education Fund, talked about voting Legal Defense and Department of Justice has filed nine lawsuits for failure to comply with Section 203 in to comply with Section for failure nine lawsuits of Justice has filed Department speakers in several counties in Florida. Until 2006, Miami-Dade County was r speakers in several counties in Florida. and Vietnamese. Vattamala remarked, “Since that time, they have significantly backslid time, they have significantly backslid “Since that remarked, and Vietnamese. Vattamala consent decree to provide Creole language assistance and hire Creole-speaking poll work- Creole-speaking language assistance and hire Creole to provide consent decree and Miami-Dade voters in Palm Beach, Broward, by 2012, Creole-speaking ers. However, of the VRA’s language minority provisions are a welcome sign of progress. However, the con- However, a welcome sign of progress. are language minority provisions of the VRA’s each successive election, until the point in 2012 where there were only four Asian language were there until the point in 2012 where each successive election, tance.” In some cases this led to voters mistakenly invalidating their ballots. tance.” In some cases this led to voters tinued reports of insufficient compliance with language assistance requirements and hostility and requirements insufficient compliance with language assistance of tinued reports NCVR and the the by testimony before LEP voters in some jurisdictions, as illustrated toward III. EXAMPLES OF RECENT LANGUAGE ACCESS LITIGATION EXAMPLES OF RECENT LANGUAGE III. voters. A breakdown for the matters involving different language minorities is as follows: for the matters involving different voters. A breakdown - “that they did not have adequate access [to] translation or literacy assis Counties reported Californiasince 2004. American voters that needed language assistance, but there was no interpreter.” assistance, but there American voters that needed language At the NCVR Pennsylvania state hearing, Jerry Vattamala, an attorney for the Asian American state hearing, Jerry Vattamala, At the NCVR Pennsylvania The impressive gains in voter registration and participation for LEP voters after the enactment and participation for LEP gains in voter registration The impressive The Commission also heard about a failure to provide language assistance for Haitian Creole for Haitian Creole language assistance to provide about a failure The Commission also heard • •

65 68 eceive assistance However, plaintiffs contended that the State However, 62 The City of Bethel was continuously covered by Section 4(f)(4) Section by covered continuously was Bethel of City The 63 Despite this, plaintiffs, who were illiterate in English, alleged that illiterate in English, alleged Despite this, plaintiffs, who were 64 Although the State had been “covered by Sections 203 and 4(f)(4) for Although the State had been “covered 67 the State of Alaska entered into a settlement agreement as a result of as a result into a settlement agreement the State of Alaska entered 61

66 involved Keresan, one involved Lakota, and one involved Yup’ik. Lakota, and one involved Yup’ik. one involved involved Keresan, Five discrete matters involved a Native American language: Three involved Navajo, two involved Navajo, Three American language: involved a Native matters Five discrete One matter involved Creole. One matter involved

hostility. The district court found that “evidence of past shortcomings justifies the issuance of The district hostility. many years[, it] lacks adequate records to document past efforts to provide language assis- language to document past efforts to provide many years[, it] lacks adequate records new and untested.” relatively designed to bring it into compliance[,] are which are program, rate among the Eskimo limited-English proficient population is 21.46 percent, almost 16 is 21.46 percent, population proficient rate among the Eskimo limited-English requirement. injunctive relief to ensure that Yup’ik-speaking voters have the means to fully participate in… that Yup’ik-speaking to ensure injunctive relief its longstanding disregard for the federally protected voting rights of its Native citizens. The for the federally protected its longstanding disregard Bethel had falsely told Yup’ik-speaking voters that they must go into the voting booth alone voters that they must go into the voting booth alone Bethel had falsely told Yup’ik-speaking since October 22, 1975. Bethel Census Area is 81.6 percent Alaska Native or American Indian, and its most populous is 81.6 percent Bethel Census Area English glossary of election terms), the district court observed that and that no one may see their votes, denied voters their right to select or r and that no one may see their votes, from the assistor of their choice, required Yup’ik-speaking voters to be assisted by poll work- voters to be assisted by poll Yup’ik-speaking the assistor of their choice, required from voting booth. that all assistance take place outside the required and Yup’ik, ers not fluent in or speak English. Language assistance is especially important in Bethel because the illiteracy or speak English. Language assistance failed to provide the language assistance required by Section 203 of the VRA. the language assistance required failed to provide Yup’ik. in documents election tance to Alaska Native voters” and “the revisions to the State’s minority language assistance minority language to the State’s tance to Alaska Native voters” and “the revisions town the City of Bethel has a population that is 61.8 percent Alaska Native or American that is 61.8 percent town the City of Bethel has a population percent. times the national illiteracy rate of 1.35 Indian. Yup’ik is the most common native language in Alaska, and many elders cannot read most common native language in Alaska, and many elders cannot read is the Indian. Yup’ik In 2002 and 2004, the DOJ sent letters to remind Bethel of the VRA’s bilingual election Bethel of the VRA’s In 2002 and 2004, the DOJ sent letters to remind Nick v. Bethel, In Nick v. - injunction ahead of the 2008 elections to obligate the State to pro In granting a preliminary vide language assistance to Yup’ik voters (including translators, sample ballots, and a Yup’ik- voters (including translators, vide language assistance to Yup’ik Some of these recent matters are summarized below. matters are Some of these recent State-run elections.” Refusal to Provide Language AssistanceRefusal to Provide Yup’ik is historically a written language, and the State of Alaska has provided other, non- other, State of Alaska has provided is historically a written language, and the Yup’ik The State’s response to the litigation was characterized by a high degree of resistance and of resistance to the litigation was characterized by a high degree response The State’s • •

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72 In 75 By May up’ik; Y 76 up’ik and Y Eventually in 1999, the Eventually in 1999, 74

70 Over the next several years, the County 73

Starting after Passaic II, World War County experienced 69 71 instructions on translating ballot materials for Yup’ik-speaking voters with Yup’ik-speaking ballot materials for instructions on translating limited English proficiency.” capable of translating ballot questions from English into Yup’ik; ensure that ‘on ensure that Yup’ik; into ballot questions from English capable of translating ensure that at least one poll worker at each precinct is fluent in one poll worker at each precinct ensure that at least or require mandatory training of poll workers in the Bethel census area, with or require mandatory census area, training of poll workers in the Bethel announcements (PSA’s) in Yup’ik, or to track whether PSA’s originally provided originally provided or to track whether PSA’s Yup’ik, in (PSA’s) announcements the spot’ oral translations of ballot questions are comprehensive and accurate, comprehensive and accurate, of ballot questions are the spot’ oral translations to a Bethel radio station in English were translated and broadcast in station in English were translated to a Bethel radio the State “had failed to […] provide print and broadcast public service and broadcast provide print “had failed to […] the State of Elections; the appointment of a Latino to a senior position in the County’s elections office (i.e., the appointment of a Latino to a senior position in the County’s the appointment of the County’s first Latino member to the four-member Board Board first Latino member to the four-member the appointment of the County’s deputy superintendent of elections);

language assistance program, an injunction was not necessary, an argument that the district an injunction was not necessary, language assistance program, language materials the at polls, failure advertise to election information in Spanish-language provide bilingual poll workers in future elections. media, as well as ethnically derogatory remarks poll by workers and their refusal allow to ity bring to the County compliance into with its language assistance obligations. assistance requirements and state federal of statutes, which resulted court in a state invali Latino percent presence the county of continued population increase, to going in from 21.7 DOJ filed suit, whichresulted in a consent decree, butthe County failedto comply. ance with Section the VRA. of 203 an influxof Latinoresidents, andeventually became1984. by coveredSection 203 in order, the courtorder, appointed an independent elections granting him sweeping monitor, author court rejected because of the long history of noncompliance. because of the long history of court rejected continued disenfranchise to Latino failing by comply voters to with the court Latino order. dating the result the Patterson of city council elections and ordering in 1986 the County to voters to obtain to assistancevoters a person in by voting their of choice. voters continuedvoters seeing a lack Spanish-speaking of poll workers, insufficient Spanish- 2000, the DOJ filed an applicationto hold the County in andcontempt, under an agreed 2002, vast improvements2002, had been made, including: Effective Minority Language Assistance Leads to Effective Minority Language Electoral Success A 1999 case filedA 1999 Passaic illustratesin the impact New Jersey, of increased County, compli The State argued that because it had already begun to take steps to remedy its defective its steps to remedy begun to take already The State argued that because it had 1990 to 30 percent in 2000. The County, however, had failed 30 percent comply to to in 2000.1990 with The however, the language County, • • 77 - o -

84 (3) 83 The City of 78 Later, in 2009, Later, 87

81 it did not translate its 89 Along with vote dilution claims relating to the elec- Along with vote dilution claims relating 79 88 In 1990, Latinos comprised 41.6 percent of the Lawrence of the Lawrence In 1990, Latinos comprised 41.6 percent 80 One of these candidates, Marcos Devers, won running at-large. One of these candidates, Marcos 86 (2) provide Spanish translations of all election-related information; Spanish translations of all election-related (2) provide 82 “In the first election after the settlement, three Latinos were elected to the nine- Latinos were “In the first election after the settlement, three 85 registration of thousands of new Latino voters; and of new Latino of thousands registration increasing availability of Spanish-language materials at the polls and a record-breaking and a record-breaking materials at the polls availability of Spanish-language increasing Latino voter turnout.

ments, in violation of Section 2. remedy had “been to provide paper templates in [the] Vietnamese to be used with language “been to provide had remedy mayor in the State of Massachusetts. member City Council.” provide bilingual poll workers at each precinct; and (4) assign Latino poll workers in each and (4) assign Latino bilingual poll workers at each precinct; provide voters in the precinct. of Latino registered to the share that was proportionate precinct population and 34.1 percent of the voting age population. As of 1997, approximately 31 of the voting age population. As of 1997, approximately population and 34.1 percent of Latino vot- 51.8 percent Latino. Importantly, voters were registered of Lawrence’s percent required to provide assistance in Vietnamese under Section 203, to provide required ing age citizens (or 12.8 percent of all voting age citizens) were LEP. of all voting age citizens) were ing age citizens (or 12.8 percent Massachusetts, on behalf of Latino citizens, some of whom were LEP voters. some of whom were Massachusetts, on behalf of Latino citizens, Devers had lost four previous times in at-large elections for City Council. Devers had lost four previous Lawrence had been covered under Section 203 since 1984; however, “the jurisdiction had under Section 203 since 1984; however, had been covered Lawrence assign Latino poll workers on the same basis as whites, in violation of Section 2; and (3) pr assign Latino poll workers on the same among other things, required the city to (1) hire a coordinator to implement the language to implement the language a coordinator the city to (1) hire among other things, required access program; electronic ballot. According to Trang Q. Tran of the Asian American Legal Center, while the Center, of the Asian American Legal Q. Tran to Trang ballot. According electronic failed to provide election-related materials in Spanish, as required by Section 203; (2) failed to materials in Spanish, as required election-related failed to provide of the County Board of Freeholders and the election of the first Latino mayor in Passaic City. Passaic in mayor Latino first the of election the and Freeholders of Board County the of elected to the City Council in its history, and that candidate had run from a majority-Latino and that candidate had run from elected to the City Council in its history, tion systems for city council and school committee, the lawsuit alleged that the City had (1) tion systems for city council and school In September 1999, the City entered into a settlement agreement with the DOJ, which, into a settlement agreement In September 1999, the City entered done little to comply with” its obligations. district. William making him the first elected Latino Lantigua was elected mayor of Lawrence, vided ineffective oral and written bilingual assistance and discriminatory poll worker assign vided ineffective oral and written bilingual Similarly, in 1998, the Department of Justice filed a lawsuit against the City of Lawrence, of Lawrence, filed a lawsuit against the City in 1998, the Department of Justice Similarly, County, Texas. Though the County took some steps to comply in 2002 when it was first Though the County took Texas. County, A third matter that highlights the positive impact of Section 203 compliance involved Harris matter A third These improvements were followed in short order by the election of the first Latino member by the order followed in short were These improvements The settlement agreement had a major impact. Previously, only one Latino had been had a major impact. Previously, The settlement agreement • •

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95 Vo 90 92 eement, which DOJ claimed that 94 and “are probably responsible, in part, for the [2004] in part, for the [2004] responsible, probably and “are 91

93

96 , alleging violations and 208, the VRA 2 of Sections of Puerto related to 4(e), Rican PHOTO CREDIT: BEN BOWENS polling sites in Philadelphia. PHOTO CREDIT: being turned away at residential number of Vietnamese-speaking poll workers. These changes resulted in the doubling of in the doubling number of Vietnamese-speaking resulted poll workers. These changes resulted in the translation of the County’s ballot into Vietnamese, the hiring of a Vietnamese the County’s in the translation of resulted staff member in the county clerk’s office, and the staffing of precincts with a significant the staffing office, and county clerk’s staff member in the after it was filed. and other Latino a Borough in Penns voters Grove, Salem of County. election of Hubert Vo, the first member of the Texas legislature of Vietnamese descent.” Texas legislature of the the first member Vo, election of Hubert family members or other people from assisting with voters limited English skills, interfered ers requesting them, or they arrived late to the polling locations and were not distributed. and were arrived late to the polling locations them, or they ers requesting than 40,000 cast.” the E-Slate machines in the polling booths” these were, at times, denied to Vietnamese at times, denied vot- were, polling booths” these machines in the the E-Slate with assistance when it was allowed, directed hostile or discriminatory remarks Latino to In July 2008, DOJ filed Salemsuit against in United Salem v. States New Jersey, County, defeated “the incumbent chair of the Appropriations Committee by sixteen votes out of more out of more Committee by sixteen votes chair of the Appropriations defeated “the incumbent On the left, Ana Sostre-Ramos testified at the NCVR Pennsylvania state hearing about Spanish-speaking voters On the left, Ana Sostre-Ramos voters at elections, at voters turned Latino and away voters, committed other violations the law. of Salem County and Penns officials Grove failed to translate ballotsSpanish,into prohibited On the same DOJ day filed its complaint, it a settlemententered into agreement with Salem County resolve to the dispute, and the court approved the settlement agreement shortly County Vietnamese-American voter turnout, Hostility Toward Limited English Proficient Voters Proficient English Toward Limited Hostility After the November 2003 election, the County and the DOJ arrived at an agr 2003 election, the County and the After the November In 99

101

and treated them dif- and treated 104 97 ovide training for all poll The district court granted 102 The permanent injunction authorized the appoint- The permanent injunction authorized 103 The court also found that the County did not provide bilingual oral and written that the County did not provide The court also found 98 In that same order, the court noted the problems in voting experienced by a woman in voting the problems the court noted In that same order, had nothing to do with voter […] rights at all. Poll workers also complained that Poll had nothing to do with voter […] rights at all. In one case […] the translated sign displayed next to the Voter Bill of Rights Voter In one case […] the translated sign displayed next to the Bengali ballots, make translated materials available, or provide interpreters. […] or provide interpreters. translated materials available, make Bengali ballots, allots,” testified voting machine scanners would not read the translated Bengali ballots,” Theresa Tran of APIA Vote-Michigan at the NCVR Michigan state hearing. Vote-Michigan APIA of Tran Theresa 100 “In 2012 , APIA Vote-Michigan […] [found that m]any failed to provide poll sites Vote-Michigan APIA “In 2012 , language coordinators to hold regular meetings with the Latino community and investigate to hold regular language coordinators hostile actions led the court to require Berks County to provide Spanish language assistance. to provide Berks County the court to require hostile actions led permanent relief on August 20, 2003. permanent relief but the County still failed to take action to remedy the situation. to remedy but the County still failed to take action born in Puerto Rico who was unable to read the English-language ballot, and consequently the born unable to read in Puerto Rico who was who she had voted for. was unsure pushed all the buttons on the ballot and brought under Sections 2 and 208 of the VRA because Hamtramck was not covered under Sections 2 and 208 of the VRA because Hamtramck was not covered under brought bilingual materials and poll workers had a “severe” impact on limited-English proficient vot- impact on limited-English proficient a “severe” bilingual materials and poll workers had ment of federal observers and ordered, among other things, that the County: (1) provide bilin- County: (1) provide among other things, that the ment of federal observers and ordered, in the State. interconnection between racial hostility and minority language issues. Though this case was interconnection Moreover, the Berks County government had been made aware of the above issues by the the Berks County government had been made aware Moreover, Department of Justice four separate times between 2001 and 2002—after four elections— Department of Justice four separate Latino voters, prevented and discouraged them from voting (e.g., because they could not voting them from and discouraged Latino voters, prevented with Latino last names), to “deal” or refused understand their names assistance at the polls and barred Latino voters from bringing in people to assist them. Latino voters from assistance at the polls and barred and report on any complaints related to hostility toward Latino voters. to hostility toward on any complaints related and report ferently with respect to voter identification requirements—they demanded photo identification demanded requirements—they to voter identification with respect ferently to vote in order required such identification was not legally Latino voters even though from covered by Section 203). The court found that poll workers made discriminatory remarks to discriminatory remarks court found that poll workers made by Section 203). The covered granting the United States’ motion for preliminary injunction, the court ruled that the lack of injunction, preliminary granting the United States’ motion for ers. gual election materials; (2) provide trained bilingual poll workers and interpreters; (3) provide (3) provide trained bilingual poll workers and interpreters; gual election materials; (2) provide their right to vote challenged and were not allowed to vote in a 1999 election until they their right to vote challenged and were workers to make them aware of voting rights and compliance with the VRA; and (5) appoint of voting rights and compliance with the VRA; and (5) appoint workers to make them aware , language issues joined with issues joined with , language Berks County v. United States case in Pennsylvania, In another jurisdiction was not under Sections 2, 4(e), and 208 (the suit brought In this case, the DOJ dedicated phone lines staffed by trained bilingual employees; (4) pr dedicated phone lines staffed by trained Section 203, a substantial part of the remedy involved requirements for language assistance. for language involved requirements Section 203, a substantial part of the remedy A group of Arab citizens in Hamtramck, an enclave surrounded by the City of Detroit, had by the City of Detroit, of Arab citizens in Hamtramck, an enclave surrounded A group United States v. City of Hamtramck, Michigan is an additional example of the The case United States v.

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107

106 In 2000, a court entered a consent decree: a consent In 2000, a court entered 105 required the placement of bilingual poll workers at every of bilingual poll workers required the placement location in polling citizens regarding the proper grounds for election challenges.” The order also challenges.” the proper grounds for election citizens regarding compliance with the order. Hamtramck on Election Day and assigned federal observers to ensure the city’s observers Day and assigned federal Hamtramck on Election to ensure the city’s “order[ing] the city to establish a program to train election officials and private to establish a program to train “order[ing] the city precinct for the assistance of Arab-American voters. for the assistance of Arab-American precinct recited an oath of citizenship—even when some were able to produce an American passport. American passport. an able to produce when some were citizenship—even an oath of recited city elections in an effort to keep challengers for the with the city clerk to provide registered failure to hire sufficient numbers of bilingual poll workers. This led the court to extend the sufficient to hire failure in every at least two bilingual poll workers to 2004, amending it to require consent decree the election ‘pure.’” There continued to be problems in Hamtramck after the consent decree, including the City’s City’s including the in Hamtramck after the consent decree, continued to be problems There The challenges were made by a “group named Citizens for a Better Hamtramck…, which had which Hamtramck…, Better a for Citizens named “group a by made were challenges The Padilla v. Padilla v. nia state e signing in s ballot initiative nia’ In that case, plaintiffs challenged a recall petition that was circulated in English in circulated recall petition that was In that case, plaintiffs challenged a 108 lie about the substance of the initiative the LEP voter is being asked to support. In lie about the substance of the initiative hearing is that, according to a ruling by the U.S. Court of Appeals for the Ninth Circuit, indi- the Ninth Circuit, by the U.S. Court of Appeals for to a ruling hearing is that, according ber who was supported by the Latino community, according to MALDEF. according community, ber who was supported by the Latino materials. process, established in 1911, plays a crucial role in determining public policy in California. in determining public role established in 1911, plays a crucial process, ited to “voting materials” provided by the government, which does not include recall petition by the government, which does not include recall ited to “voting materials” provided support of something else, and that the petition resulted in the recall of a school board mem- board of a school in the recall the petition resulted support of something else, and that However, because initiative petitions may be circulated in English only, LEP voters are subject LEP voters are in English only, because initiative petitions may be circulated However, a district with a high concentration of LEP voters. MALDEF, who represented the challengers, who represented LEP voters. MALDEF, a district with a high concentration of testified that a number of people signed the petition after being told that they wer testified that a number of people signed to manipulation by unscrupulous paid signature gatherers who misinterpret or deliberately who misinterpret gatherers signature to manipulation by unscrupulous paid Petition Process do so only in English without violating Section 203 of the VRA. Califor without violating Section 203 of the do so only in English viduals and organizations that circulate recall petitions and initiatives for voter signatures may and initiatives for voter signatures petitions recall that circulate viduals and organizations PHOTO CREDIT: ANDRIA LO voting in English-only elections. PHOTO CREDIT: , an en banc panel of the Ninth Circuit determined that the scope of Section 203 is lim- determined that the Lever, an en banc panel of the Ninth Circuit Case SpotlightCase Recall and English-Only Initiative California’s At the NCVR California hearing, MALDEF President Thomas Saenz testified about the barriers Latinos face when Thomas Saenz testified about At the NCVR California MALDEF President hearing, A major barrier identified by witnesses from the Greenlining Institute and the Mexican Greenlining the by witnesses from A major barrier identified during the NCVR Califor and Educational Fund (MALDEF) American Legal Defense

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE

CHAPTER 7 206 “For Latino citizens that speak little English, [much recent research shows that] access to Spanish ballots [...] and language assistance increases and influences election turnout.”

– Dr. Mindy Romero, Director of the California Civic Engagement Project at the UC Davis Center for Regional Change (NCVR California hearing) “I have been part of those who have gone abroad extolling the American process […] I went to the Soviet Union […] I went to South Africa […] during Apartheid […] I was there to try to offer a little encouragement […] I cited the American experience. I cited the struggle we had in the South with voting rights, the lynchings of persons who attempted to exercise their right[s] […] We had the ‘64 Civil Rights Act. We had the ‘65 Voting Rights Act. […] Throughout the country, we had African Americans serving on our various bodies of jurisprudence. These things, I felt, were made possible because persons were able to vote. […] And, now, here in this country […] we are engaged in a degree of voter repression […] [and] it’s urgent that we turn this around.”

–Guest Commissioner and retired Judge for the U.S. Court of Appeals for the Sixth Circuit, Hon. Nathaniel Jones at the NCVR Columbus regional hearing PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE CONCLUSION NATIONAL COMMISSION ON VOTING RIGHTS 209 ed while waiting for the e occurring in new areas of the e occurring in new areas —ar ­ PHOTO CREDIT: JIMMY MCEACHERN PHOTO CREDIT: sometimes in combination with intimidation or harassment sometimes in combination with intimidation discrimination in voting. recent and severe Indigenous peoples also continue to suffer country. involves the spike in activities described in trend Perhaps the most disturbing emerging for requirements government-issuedChapter 6: laws and practices—like photo identification that and the laws number, racial minorities in greater voters—which effectively disenfranchise early voting—that minority voters use more the availability of methods of voting—like reduce view these voting changes with a jaundiced eye, given than white voters. It is difficult not to measurable legitimate benefit and the minimal, if any, the practical impediments they create is perhaps the best voting legislation passed in North Carolina The “omnibus” they offer. and the Shelby County decision have coalesced: after example of how this emerging trend quickly enacted a law that, among other things, legislature Shelby County, the North Carolina and voting, early of duration reduces the requirement, identification voter restrictive a contains during the early voting period. eliminates same-day voter registration Sims that because “the right to exercise Court stated in Reynolds v. In 1964, the Supreme political of other basic civil and manner is preservative and unimpaired the franchise in a free and meticu- rights, any alleged infringement of the right of citizens to vote must be carefully policymakers, lously scrutinized.” This principle of constitutional law should guide courts, law or practice. election administrators, and citizens every time they contemplate an election the detriment of minority voters. As long this principle is ignored—to All too often, however, range of meth- that deter and combat the broad as this is the case, specific legal protections - of these protec enforcement ods of discriminating against minority voters, and the vigorous vitally important to American democracy. tions, remain This report sets forth in substantial detail the breadth and depth of how election laws and and detail the breadth sets forth in substantial This report a negative and disproportionate or implemented since 1995 have had practices adopted Latino, Native American, and equal participation of African-American, impact on the full and Asian voting age citizens. most assistance, remain to language than those related Rights Act violations, other Voting by Section 5. Although the full covered formerly jurisdictions that were concentrated in the of Section 5 cannot be impact of the Shelby County decision and its effective nullification of several formerly so soon after the decision, the immediate reaction fully comprehended changes that a federal court or the Department states has been to implement voting covered or that the jurisdiction had deferr of Justice had affirmatively blocked decision does to the Court’s reaction Shelby County decision. These states’ instantaneous not portend well for the future. and move in larger numbers to more continues to grow As the minority language population protections— 203 and the other language-related states and localities, violations of Section CONCLUSION - - - -

1. the history of official voting-related discrimina- tion in the state or political subdivision; 2. the ex tent to which voting in the elections of the state or political subdivision is racially polarized; 3. the extent to which the state of political subdivision that has used voting practices or procedures tend to enhance the opportunity for discrimination such as unusually large against the minority group, and requirements, majority-vote districts, election against bullet voting; 4. the exclusion prohibitions candidate from group minority of the members of 5. the extent to which minor slating processes; ity group members bear the effects of discrimina- and employment, education, such as in areas tion health, which hinder their ability to participate ef 6. the use of overt fectively in the political process; or subtle racial appeals in political campaigns; and 7. the extent to which members of the minority group have been elected to public office jurisdiction. in the whether there is a significant lack ofresponsive- ness on the part of elected officials ticularized needs of the members of the minority to the par state the policy underlying the [or] whether group use of such voting qualifi- or political subdivision’s practice to voting, or standard, cation, prerequisite is tenuous. or procedure Nat’l Comm’n on the Voting Rights Act, supra note 36, See Nat’l Comm’n on the Voting at 88. Gingles, 478 U.S. at 49-51. Id. at 46. Id. at 61-62. of Justice, Act, U.S. Dep’t Rights Section 2 of the Voting vot/sec_2/about_sec2. http://www.justice.gov/crt/about/ php (last visited July 16, 2014). 42 U.S.C. § 1973(b). S. Rep. No. 97-417, 28-29 (1982). Gingles, 478 U.S. 30, 47 (1986). The potential Thornburg v. Section 2 factors include: Id. at 37 (quoting S. Rep. 97-417, at 28-29). , VRA for Today, http:// Rights Act, VRA for Today, The Voting Backgrounder: id=212 (last visited July 16, vrafortoday.org/?attachment_ 2014). Rights Act, See generally Nat’l Comm’n on the Voting Rights Act at Work The Voting Minority Voters: Protecting 1982-2005 (2006). on Civil Rights, Release, Leadership Conference Press Civil Rights Coalition Celebrates Renewal of Landmark http://www. Rights Act (July 27, 2006), available at Voting civilrights. org/press/2006/civil-rights-coalition-celebrates- renewal-of-landmark-voting-rights-act.html. Bossier Parish Sch. Bd., 520 U.S. 471 (1997). Reno v. , 539 U.S. 461 (2003). Ashcroft Georgia v. H.R. Rep. No. 109-478, at 66-72.

at 36–37. Also potentially relevant is: See id. at 36–37. Also potentially relevant

46 46a 47 41 42 43 44 45 35 36 37 38 39 40 525 U.S. 266 (1999). Cnty., Monterey Lopez v. Voting Rights Amendments of 1975. Voting H.R. Rep. No. 109-478 (2006); H.R. Rep. No. 97-205 (1982); H.R. Rep. No. 94-196 (1975); H.R. Rep. No. 91-397 (1969). H.R. Rep. No. 94-196. Id. Id. Rights Amendments of 1975 § 203 (codified as Voting amended at 42 U.S.C. § 1973aa–la). Id. Bolden, 446 U.S. 55 (1980). See Mobile v. S. Rep. No. 97-417 (1982). Morgan, 384 U.S. 641 (1966). Katzenbach v. United States, 411 U.S. 526, 535 (1973). Georgia v. United States, 446 U.S. 156, 172–82 City of Rome v. (1980). 42 U.S.C. § 1973b(e). 42 U.S.C. § 1973i. Katzenbach, 383 U.S. 301, 308 (1966). v. South Carolina Id. at 328 (footnote omitted). Rights Act, § 4. Voting Pub. L. No. 91- Rights Act Amendments of 1970, Voting of 1975, Rights Amendments 285, 84 Stat. 314; Voting Rights Act Amend- Pub. L. No. 94-73, 89 Stat. 400; Voting ments of 1982, Pub. L. No. 97-205, 96 Stat. 131; Fannie Scott King, Cesar Chavez, Rosa Parks, Coretta Lou Hamer, Hector P. and Dr. WilliamBarbara C. Jordan, C. Valasquez, Amendments Rights Act Reauthorization and Voting Garcia Act of 2006, Pub. L. No. 109-246, 120 Stat. 577. Rights Act Amendments of 1970. Voting 165–82 The Rise and Fall of Jim Crow Wormser, Richard (2003). See, e.g., Katzenbach, 383 U.S. at 313. Rights Act: Ten U.S. Comm’n on Civil Rights, The Voting After 43 (1975). Years Special Message to Con- B. Johnson, Lyndon President 15, 1965), available (Mar. American Promise The gress: at http://www.lbjlib.utexas.edu/johnson/archives.hom/ speeches.hom/650315.asp. 79 Stat. 437. Rights Act of 1965, Pub. L. 89-110, Voting Id. § 4 (codified as amended at 42 U.S.C. § 1973b). 42 U.S.C. § 1973b(c). Rights Act, § 6. Voting 42 U.S.C. § 1973f. See 42 U.S.C. § 1973c. amended at 42 § Rights Act, § 2 (codified as See Voting 1973). 383 U.S. 301, 315–16 Katzenbach, v. South Carolina Cruikshank, 92 U.S. 542 (1876); United See United States v. Reese, 92 U.S. 214 (1876). States v. The Shaping of Southern Politics: See J. Morgan Kousser, Establishment of the One-Party Suffrage Restriction and the South, 1880-1910, at 45–62 (1974).

34 22 23 24 25 26 27 28 29 30 31 32 33 15 16 17 18 19 20 21 4 5 6 7 8 9 10 11 12 13 14 ENDNOTES CHAPTER 1 1 2 3

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES

NATIONAL COMMISSION ON VOTING RIGHTS 210 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES NATIONAL COMMISSION ON VOTING RIGHTS 211 The End

Voting Determina- Voting note 6, at 43. Reno v. Bossier Parish School Bd., 520 U.S. 471 (1997). Reno v. Bossier Parish School Bd. (Bossier Parish II), 528 Reno v. U.S. 320 (2000). J., dissenting). Id. at 342-53 (Souter, Time is Still on Its Side: Why Congressional Mark A. Posner, Rights Act Rep- Reauthorization of Section 5 of the Voting Response to Our Na- a Congruent and Proportional resents J. Legis. 10 N.Y.U. History of Discrimination in Voting, tion’s & Pub. Pol’y 51, 114 (2006); Peyton McCrary et al., Court Knew It: How the Supreme As We of Preclearance U.S. Dep’t U.S. Dep’t Carolina, Determination Letters for South Voting - crt/records/vot/obj_let of Justice, http://www.justice.gov/ determination ters/state_letters.php?state=sc (referencing 6, 1972). letter issued March H.R. Rep. No. 94-196, at 10. of Justice, http:// Section 5 Objection Letters, U.S. Dep’t obj_letters/index.php. www.justice.gov/crt/records/vot/ The Real Story Behind the Justice See Mark A. Posner, of Section 5 of the VRA: Implementation Department’s 1 Duke J. as Intended by Congress, Enforcement, Vigorous Const. L. & Pub. Pol’y 79, 104-05 (2006). S. Rep. No. 97-417, at 9–11. S. Rep. No. 97-417, at 9–11. 412 U.S. 755 (1973). Regester, White v. Bolden, S. Rep. No. 97-417, at 24-27 (discussing Mobile v. 446 U.S. 55 (1980)). Quiet Revolution in the South, supra note 82, at 35–36 (overview), 54–56, 61–64 (Alabama), 78, 99–100 (Georgia), 112–13, 120–21, 133 (Louisiana), 142–43, 151–52 (Missis- - 226–27, (South Caro sippi), 171–73, 189 (North Carolina), 297 (Virginia); Nat’l Comm’n lina), 254–55, 264–68 (Texas), Rights Act, supra note 36, at 81–88. on the Voting 1990 2d 763 (9th Cir. County of L.A., 918 F. Garza v. Mark Rosenbaum, Op-Ed, Drawing Fair District Lines, L.A. Times, (Sept. 27, 2011), http://articles.latimes.com/2011/ sep/27/opinion/la-oe-rosenbaum-county-supervisors- redistricting-20110927. , 542 F. Supp. 1050, 1075 (S.D. Ala. 1982). Supp. 1050, 1075 , 542 F. Mobile Bolden v. Lightfoot, 364 U.S. 339 (1960). Gomillion v. 1347, 1357 (M.D. Supp. Cnty, 640 F. Crenshaw v. Dillard Ala. 1986). politics has been docu- This transformation of American and articles. See, e.g., books, reports, mented in numerous (Chandler Davidson & Bernard Quiet Revolution in the South Rights on the Voting eds., 1994); Nat’l Comm’n Grofman Civil Rights, supra Act, supra note 36; U.S. Comm’n on Rights Act: Rights, The Voting note 6; U.S. Comm’n on Civil Unfulfilled Goals (1981). supra U.S. Comm’n on Civil Rights, 12–17, 25–28. H.R. Rep. No. 109-478, at Id. at 29-31. of U.S. Dep’t Determination Letters for Mississippi, Voting records/vot/obj_letters/ Justice, http://www.justice.gov/crt/ let- determination state_letters.php?state=ms (referencing ters issued May 21, 1969 and May 26, 1969). of U.S. Dep’t Determination Letters for Georgia, Voting records/vot/obj_letters/ Justice, http://www.justice.gov/crt/ letters determination state_letters.php?state=ga (referencing issued June 19, 1968 and July 11, 1968). of Justice, http:// , U.S. Dep’t tion Letters for South Carolina crt/records/vot/obj_letters/state_letters. www.justice.gov/ php?state=sc.

99 100 101 102 88 89 90 91 92 93 94 95 96 97 98 79 80 81 82 83 84 85 86 87 supra note 48. , Id. § 1973i(b). Rights Act, supra See generally Nat’l Comm’n on the Voting Ad- Problems note 36, at 15-25 (discussing “The Two by the Act[,]” disfranchisement and vote dilution). dressed - Holder, 133 S. Ct. at 2633-35 (Gins See Shelby County v. burg, J., dissenting). Id. § 55.16. Id. § 55.17. 42 U.S.C. § 1973b(e). 42 U.S.C. § 1973a(a). Id. § 1973a(c). Id. § 1973aa. Id. § 1973aa–6. Id. § 1973i(a). Voting Rights Act Amendments of 2006, Determinations Voting Under Section 203, 76 Fed. Reg. 198 (Oct. 13, 2011). 42 U.S.C. § 1973b(f)(4); id. § 1973aa–1a(b)(3)(A). Guidelines on Implementation of the Attorney General’s Language Rights Act Regarding of the Voting Provisions 76 Fed. Reg. 169 (Aug. 31, 2011) (codified Minority Groups, pt. 55). at 28 C.F.R. Id. § 55.2(b). , U.S. Dep’t of Rights Act, U.S. Dep’t See Section 4 of the Voting vot/misc/sec_4. Justice, http://www.justice.gov/crt/about/ php#bailout (last visited July 24, 2014). by Section 5 Covered Jurisdictions Previously (enacting 42 U.S.C. Rights Act Amendments of 1975 Voting § 1973b(f)(4)). Id. (enacting 42 U.S.C. § 1973 aa-1a). § 55.8(a). 28 C.F.R. See 42 U.S.C. § 1973c(a). United States, 425 U.S. 130, 141 (1976). Beer v. See 42 U.S.C. § 1973b(c). Id. § 1973b(f)(3). See Katzenbach, 383 U.S. at 329–33. 42 U.S.C. § 1973b(a)(1)–(6). See South Carolina v. Katzenbach, 383 U.S. 301, 328 v. See South Carolina § 51.52(a). (1966); 28 C.F.R. , 393 US 544, 566 (1969). of Elections State Board Allen v. Roemer, 500 U.S. 646, 658 (1991). Clark v. - re Submissions to the Attorney General generally were be decided within 60 days or the submitted voting to quired by operation of law. change automatically was precleared the Attorney General was in certain circumstances However, period, most particularly authorized to extend the review - regard decisions that preclearance when needed to ensure based on a complete factual changes were ing controversial for Administration of Section 5 of See Procedures record. § 28 C.F.R. Rights Act of 1965, As Amended, the Voting 51.10. Section 5 defines a voting change as any practice that dif- a voting change as Section 5 defines the practice practice or from the pre-existing fers either from coverage began. jurisdiction’s in effect on the date that the of the Section 5 jurisdictions 42 U.S.C. § 1973c(a). Most 1964 based for changes after November 1, covered were of Section 5 in 1965; a few upon the original enactment 1968 based for changes after November 1, covered were to Section 5; and others were upon a 1970 amendment upon the 1975 after November 1, 1972 based covered Cov- Jurisdictions Previously amendments to the statute. Justice, http://www.justice. by Section 5, U.S. Dep’t ered gov/crt/ about/vot/sec_5/covered.php.

76 77 78 68 69 70 71 72 73 74 75 64 65 66 67 59 60 61 62 63 53 54 55 56 57 58 52 49 50 51 48 part, leaving 34 states and the District of Columbia entirely part, leaving 34 states and the District of Columbia entirely was When Shelby County was decided, there uncovered. town- state, since the covered one fewer partially-covered had bailed out of coverage. ships in New Hampshire 28 C.F.R. § 51.52. 28 C.F.R. See Voting Rights Act: Evidence of Continuing Need: Rights Act: Evidence of See Voting the Subcomm. on the Constitution of the Hearing Before H. Comm. on the Judiciary, 109th Cong. 202-03 (2006) Rights Initiative). (Findings of the Michigan Voting Perry, 548 U.S. League of United Latin American Citizens v. 399 (2006). Id. at 440. Regester, 412 U.S. 755 (1973), the first case in White v. Court upheld a claim of minority vote which the Supreme plan. state legislative redistricting dilution, involved a Texas Supp. 2d 133, 153, 159 United States, 887 F. v. Texas , 133 S.Ct. 2885 (D.D.C. 2012) vacated and remanded (2013). Cal. Elec. Code. §§ 14027-14032. The constitutionality of the CVRA was unsuccessfully City of Modesto, 145 Cal. App. challenged in Sanchez v. 4th 660 (2007). See also generally National Commission Rights, California State Hearing (Jan. 30, 2014) on Voting (transcript on file with the Lawyers’ Committee) (discussing examples of successful litigation under the CVRA). 3, note b for an explanation as to six objections See Table this objection count. omitted from that are denials by the D.C. district court of the preclearance Two denials by administrative preclearance by preceded were same voting changes. Since the district the DOJ regarding court rulings superseded the DOJ determinations, these in the total not included two administrative denials are number of objection letters issued by DOJ. ac- This Report does not include Section 5 enforcement tions since 1995. Such cases concerned the limited (but being important) question of whether voting changes were jurisdiction without the requisite implemented by a covered evidence indirect These cases can provide preclearance. of efforts to implement discriminatory voting changes, but because they did not deal with the substantive question of discriminatory or whether the voting practices at issue were not included here. not, they are 539 U.S. 461, 482 (2003). 539 U.S. 461, Ashcroft, Georgia v. 68–72. H.R. Rep. No. 109-478, at 68, 71. H.R. Rep. No. 109-478, at 2d 424 (2011). Supp. Holder, 811 F. v. Shelby Cnty. 848 (2012). 3d 679 F. Holder, v. Shelby Cnty. 133 S. Ct. 2612 (2013). Holder, v. Shelby Cnty. Id. at 2627. Id. at 2619. Id. at 2632–52. Id. at 2632–33 (footnote omitted). Id. at 2650

16 6 7 8 9 10 11 12 13 14 15 104 105 106 107 108 109 110 111 112 113 114 At the time of the 2000 Census, nine states were fully cov- At the time of the 2000 Census, nine states were in covered under Section 4(b), and seven states were ered Had the passage of time purged the vestiges of historic vot- Had the passage of time purged the vestiges of historic 1965- ing discrimination (i.e. conditions as they existed circa 75), then the cases should show no geographic clustering. 2 As indicated in note 2, in identifying successful Section lawsuits we include adjudicated court findings of Section for 2 violations as well as settlements of Section 2 claims was no court finding. This is because it would which there to rely seriously understate the scope of the problem exclusively upon adjudicated violations. In the first place, Section to assume that the strongest it would be incorrect finally adjudicated. Indeed, those that were 2 cases were rights very likely to settle. Voting Section 2 cases are strong widely known for being “fact-heavy”, and it is the cases are and the federal policy of the Federal Rules of Civil Procedure courts to encourage settlements and to conduct trials only genuine factual disputes. Cases when necessary to resolve out via dispositive motions when weeded routinely are triable factual courts conclude that they do not present liability in settle- deny claims. While defendants frequently the the fact that a settlement has altered ment agreements, in favor status quo in the plaintiffs’ favor weighs strongly of including them for purposes of assessing the extent of Rights voting discrimination and the impact of the Voting under Section 2, and of proof Act. Plaintiffs carry the burden indication that the defendants a settlement is a reasonable judgment that they stood a substantial made a considered in a finding of liability against them. risk that trial would result Cases brought under Section 2 of the VRA that raised Cases brought lan- to provide successful claims based upon the failure included in the separate category of guage assistance are under language assistance cases, along with cases brought Sections 203, 4(f)(4), and 4(e) of the VRA. those The Section 2 and language assistance cases include which in which a court ruled for the plaintiffs, and those in or settlement into a consent decree the parties entered that the challenged election practice be replaced requiring and settlements in which the (including decrees or altered those defendants admitted a violation (or the equivalent) and in which no violation was admitted). The language cases out-of-court settlements were include a few matters where without litigation being filed. reached Transformed Section 5 of the Voting Rights Act, 11 Mich. Rights of the Voting Section 5 Transformed 297 (2006). In Busbee v. J. Race & L. 275, 276, 284–86, 494 (D.D.C 1982), the district court Supp. Smith, 549 F. redistricting Georgia congressional to a denied preclearance adopted spe- but which was plan that was not retrogressive of African Americans to cifically to minimize the opportunity delegation. congressional State’s elect any members of the - to the leadership of a redis The plan was adopted pursuant openly avowed a racial intent. tricting committee chair who by the decision was summarily affirmed The district court’s Smith, 459 U.S. 1166 (1983). Court. Busbee v. Supreme States, 479 U.S. 462, n.11 United v. See Pleasant Grove United States, 422 U.S. 358, (1987); City of Richmond v. 378–79 (1975).

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NATIONAL COMMISSION ON VOTING RIGHTS 212 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES NATIONAL COMMISSION ON VOTING RIGHTS 213 tion inherent in obtaining a new photo ID card, might have might in obtaining a new photo ID card, tion inherent law under the strict for South Carolina’s posed a problem Voting Rights Act. . . . .”). effects test of Section 5 of the of Justice, Assistant Attorney General Thomas E. Perez Attorneyof Justice, Assistant Thomas E. Perez General of State of Secretaries Speaks at the National Association available at http://www. (Jan. 30, 2012), 2012 Conference justice.gov/crt/opa/pr/speeches/2012/crt-speech-1201301. html. H.R. Rep. No. 109-478 (2006), at 57. 2012). 848, 872 (D.C. Cir. 679 F.3d Holder, v. Shelby Cnty. Rights Act: of the Voting Id. (quoting Modern Enforcement 109th Cong. the S. Comm. on the Judiciary, Hearing Before 22 (2006)). Inc., 555 U.S. 7, 20 Natural Res. Def. Council, See Winter v. (2008); see also id. at 51 (Ginsburg, J., dissenting). Id. Id. at 48. Id. at 48–50. Id. at 53–54. Att’y Assistant Thomas E. Perez, Determination Letter from of Justice, to State of Georgia (Dec. 21, Gen., U.S. Dep’t 2012), available at http://www.justice.gov/crt/records/vot/ obj_letters/letters/GA/l_121221.pdf. Id. Id. at 3. No. Augusta-Richmond Cnty., v. Complaint at 5–6, Howard http:// 1:14-cv-00097 (S.D. Ga. May 13, 2014), available at redistricting.lls.edu/files/GA%20howard%2020140414%20 complaint.pdf. Augusta- v. Motion to Dismiss at 8, Howard Granting Order No. 1:14-cv-00097 (S.D. Ga. May 13, Richmond Cnty., 2014), available at http://redistricting.lls.edu/files/GA%20 howard%2020140513%20order.pdf. Sandy Hodson, City Wins Lawsuit over Change in Election (May 13, 2014), Date for Local Offices, Augusta Chron. - http://chronicle.augusta.com/news/government/elec tions/2014-05-13/city-wins-lawsuit-over-change-election- date-local-offices. Assistant Att’y Thomas E. Perez, Determination Letter from of Justice, to Beaumont Indep. Sch. Dist. Gen., U.S. Dep’t (Dec. 21, 2012), available at http://www.justice.gov/crt/ records/vot/obj_letters/letters/TX/l_121221.pdf. Id. at 1–3. Id. at 2. Beaumont Indep. Sch. Dist., No. v. See Complaint, Walker available at http://redistricting.lls. 1:13-cv-128 (E.D. Tex.), edu/files/20131223%20walker%20v%20bisd%20com- plaint.pdf. 28 C.F.R. § 55.17 § 28 C.F.R. assistance voter who requires 42 U.S.C. § 1973aa–6 (“Any or inability to read of blindness, disability, to vote by reason by a person of the voter’s or write may be given assistance or agent of that employer choice, other than the voter’s union.”). of the voter’s employer or officer or agent Id. at 36. Id.

24 25 26 27 13 14 15 16 17 17a 18 18a 19 20 21 21a 22 23 19 20 11 12 - See 898 F. Supp. 2d at 40 (“About 96% of whites and about of whites 40 (“About 96% 2d at Supp. F. See 898 one of the . . have 92–94% of African–Americans currently . photo IDs [listed by the 2011 statute]. That racial disparity, of time and cost of transporta- combined with the burdens U.S. Dep’t of U.S. Dep’t Determination Letters for Texas, See Voting Justice, http://www.justice.gov/crt/records/vot/obj_letters/ state_letters.php?state=tx (last visited July 23, 2014), (listing determination letters issued by the Department of Justice pertaining to the State of Texas). Supp. 2d at 32. United States, 898 F. v. South Carolina Assistant Att’y Thomas E. Perez, Determination Letter from 1–3, of Justice, to State of South Carolina, Gen., U.S. Dep’t (Dec. 23, 2011), available at http://www.justice.gov/crt/ records/vot/obj_letters/letters/SC/l_111223.pdf. , 888 F. Supp. 2d at 115. Holder, 888 F. v. Texas Supp. 2d at 138, 159, 161, United States, 887 F. v. Texas 162, 177-78. supra note 1, at 113–14. ance in eleven cases. Posner, - the district court denied pre After the 2006 reauthorization, United States, clearance in four additional cases: Florida v. 888 F. Holder, v. Supp. 2d 133 (D.D.C. 2012); Texas 887 F. 133 Supp. 2d 113 (D.D.C. 2012), vacated and remanded, Supp. 2d United States, 887 F. v. S. Ct. 2886 (2013); Texas , 133 S. Ct. 2885 133 (D.D.C. 2013), vacated and remanded Supp. United States, 898 F. v. (2013); and South Carolina 2d 30 (D.D.C. 2012). Assistant J. Stanley Pottinger, Determination Letter from (Dec. of Justice, to State of Texas Att’y Gen., U.S. Dep’t 10, 1975), available at http://www.justice.gov/crt/records/ vot/obj_letters/letters/TX/TX-1000.pdf; Determination Letter of Assistant Att’y Gen., U.S. Dep’t J. Stanley Pottinger, from (Jan. 3, 1976), available at http:// Justice, to State of Texas www.justice.gov/crt/records/vot/obj_letters/letters/TX/TX- 1010.pdf. See id. See id.; see generally Section 5 Objection Letters, U.S. http://www.justice.gov/crt/records/vot/ of Justice, Dep’t obj_letters/index.php (last visited July 23, 2014), (listing determination letters issued by the Department of Justice for jurisdiction filed that a covered by State). It was rare with the U.S. District Court for the District of preclearance 1965 to 2006, that court denied preclear Columbia. From Mark A. Posner, The Real Story Behind the Justice See Mark A. Posner, of Section 5 of the VRA: Implementation Department’s , 1 Duke J. as Intended by Congress Enforcement, Vigorous Const. L. & Pub. Pol’y 79, 102, 104–05 (2006). Attorney General’s Guidelines on Implementation of the Guidelines on Implementation See Attorney General’s Language Rights Act Regarding of the Voting Provisions § 55 (2011), available at http:// 28 C.F.R. Minority Groups, www.justice.gov/crt/about/vot/28cfr/55/28cfr55_2011. Att’y Gen., Dep’t Assistant pdf; see also Thomas E. Perez, - the VRA do not re 2 and Section 5 of By contrast, Section Instead, they procedures. states to follow any specific quire that are and procedures the use of voting practices prohibit (under Section 2) or that shown to be racially discriminatory to be nondiscriminatory (under jurisdictions could not show Section 5).

10 7 8 9 5 6 4 2 3 CHAPTER 3 1 18 17 note 5, at 114–15. Additionally, in Georgia by supra note 5, at 114–15. Additionally, had neither a discriminatory purpose or a discriminatory discriminatory purpose or had neither a effect. retrogressive Heller, supra note 7, at 367 n.51. Heller, House VRA Hearings of 1975, supra note 8, at app. 1023. rates in The disparity between black and white registration prior to 44.1 percent states was approximately the covered 1965). Id. at app. 1026. This disparity was the Act (in March in September 1967 and 11.2 27.4 percent approximately for 1971–1972. Id. The 1975 legislative history also percent to pre-VRA in turnout from highlights the overall increase presidential to the 1964 post-VRA elections. As compared election increased election, turnout in the 1968 presidential See N.C. Sess. Laws 2013-381 (H.B. 589). Id. at § 2.1. Mo- United States’ Memorandum of Law in Support of its Injunction and for the Appointment of tion for a Preliminary Federal Observers, supra note 43, (internal citation omitted). Governor Signs Extensive Voter North Carolina Blake, Aaron Post (Aug. 12, 2013), www.washingtonpost. ID Law, Wash. com/blogs/post-politics/wp/2013/08/12/north-carolina- cf. N.C. Sess. Laws governor-signs-extensive-voter-id-law; 2013-381 (H.B. 589). Keyssar, to vote. Id. registered 1910, only 4% of all black males were at 114–15. In 1964, only 6.7% of African Americans eligible to 70.2% of compared registered to vote in Mississippi were Rights Act: Hearings Before whites. Extension of the Voting the Subcomm. on Civil & Constitutional Rights of the H. 94th Cong. 4 (1975) [hereinafter Comm. on the Judiciary, House VRA Hearings of 1975] (statement of Hon. Peter Just prior to the enactment of the VRA in Rodino, Jr.). W. statistics in Alabama, Georgia, of 1965, “registration March and Carolina, South Louisiana, Mississippi, North Carolina, 19.3, 27.4, 31.6, 6.7, 46.8, 37.3, and 38.3 Virginia were H.R. Rep. No. 109-478, at 7 n.8 respectively.” percent, (2006) (citing H.R. Rep. No. 94-196, at 6 (1975)). Katz et al., supra note 5, at 646. Expert Report of J. Morgan Kousser at 38, League of Expert Report of J. Morgan No. 1:13-cv- North Carolina, N.C. v. of Voters Women May 19, 2014) (quoting Rob 00660-TDS-JEP (M.D.N.C. Voter for Confident GOP Preps Christensen & John Frank, Poll Shows Bill the Same; More ID Bill - Democrats Say It’s available at 6, 2013), Mar. Has Support, News & Observer, http://moritzlaw.osu.edu/electionlaw/litigation/documents/ League1557.pdf. employee ID; ID issued by the The bill allowed voters to use or its constituent institutions; ID University of North Carolina community college; ID issued to issued by a North Carolina or law enforcement EMS or hospital employee, a fireman, officer; ID issued by a unit of local government, public or special district; and ID issued for a government authority, of public assistance. program Mo- United States’ Memorandum of Law in Support of its Injunction and for the Appointment of tion for a Preliminary of N.C., Voters Federal Observers at 12, League of Women No. 1:13-cv-00660-TDS-JEP (internal citation omitted).

10 11 44 45 46 47 8 9 41 42 43

Protecting Minority Rights Act, Protecting Nat’l Comm’n on the Voting , 1982–2005 (2006). Rights Act at Work The Voting Voters: Id. at 15. Holder: When the et al., Shelby County v. Jon Greenbaum L.J. 811, 816 (citing Rational Becomes Irrational, 57 How. The Contested The Right to Vote: Alexander Keyssar, History of Democracy in the United States (2000)); J. The Shaping of Southern Politics: Suffrage Morgan Kousser, Restriction and the Establishment of the One-Part South, 1880-1910 (1974); see also Ellen Katz et al., Documenting Judicial Findings Under Section Discrimination in Voting: Rights Act Since 1982, 39 U. Mich. J.L. 2 of the Voting Reform 643, 646 (2006). supra note 5, at 111. Keyssar, Shelby County and the End of History, 44 U. Joel Heller, 357, 367 (2013). Mem. L. Rev. This report uses the terms “African American” and “black” This report uses the terms as In addition, the report interchangeably. “Native Americans” “Latino” and “Hispanic” interchangeably. include American Indians and Alaska Natives. to Latinos, the statute refers refers this report Whereas Rights Act to “persons . . . of Spanish heritage.” Voting Amendments of 1975, Pub. L. No. 94-73, § 203, 89 Stat. 400, 401–02. N.C. Gen. Stat. §§ 163-227.2 (2013) (amended 2013). N.C. Gen. Stat. § 163-82.6(a) (2013) (amended 2013). by H.B. 589 N.C. Gen. Stat. § 163-82.1(d) (repealed (2013)). Dips Below 2008 and 2004 2012 Election Turnout By Eight Increases Levels: Number Of Eligible Voters Cast, Bipartisan Million, Five Million Fewer Votes 8, 2012), bipartisanpolicy.org/news/ (Nov. Policy Ctr. - press-releases/2012/11/2012-election-turnout-dips-be low-2008-and-2004-levels-number-eligible. Democracy N.C., Republicans, African Release, Press and Seniors Post the Highest Voter Americans, Women available at (Dec. 19, 2012), Rates in North Carolina Turnout democracy-nc.org/downloads/NCVoterTurnout2012PR.pdf. 133 S. Ct. 2612 (2013). Shelby Holder, v. Shelby Cnty. of provision removed the preclearance County effectively Act, which had required Rights Section 5 of the Voting voting changes that proposed jurisdictions to prove covered In sum, the preliminary injunction remedy is considered “ex- is considered injunction remedy In sum, the preliminary Kane, Marcus Miller, and “drastic.” 11A Wright, traordinary” § 2948 (3d ed.). & Steinman, Federal Practice & Procedure 2d 268, 272 Supp. 316 F. Cnty., Charleston United States v. (D. S.C. 2003). Id. at 272. Id. at 273. Id. at 307. 341 (4th Cir. , 365 F.3d Cnty. Charleston United States v. 2004). Assistant Att’y Gen. R. Alexander Determination Letter from Sch. Dist. to Charleston Cnty. of Justice, Acosta, U.S. Dep’t http://www.justice.gov/crt/ (Feb. 26, 2004), available at records/vot/obj_letters/letters/SC/SC-2180.pdf

3 4 5 6 7 CHAPTER 4 1 2 35 36 37 38 39 40 28 29 30 31 32 33 34

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NATIONAL COMMISSION ON VOTING RIGHTS 214 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES NATIONAL COMMISSION ON VOTING RIGHTS 215 Diverse Origins: Diverse Ctr., Mark Hugo Lopez et al., Pew Research 5 (2013), 14 Largest Hispanic-Origin Groups The Nation’s - available at http://www.pewhispanic.org/files/2013/06/sum mary_report_final.pdf. at Risk: The Impact of NALEO Educ. Fund, Latino Voters on the Nation’s and Registration Measures Restrictive Voting Electorate (2012), available at http://www. Fastest Growing naleo.org/downloads/LatinoVotersatRisk.pdf. See id. Rights Act, supra note 3, at Nat’l Comm’n on the Voting 11–25. Id. at 37. Outlived its Rights Act David Lublin et al., Has the Voting “No”, 34 Legis. Studies Q. 525, 526 Usefulness? In a Word, districts (2009). It may be the case that coalition districts, or com- minority group than one protected in which “more bined forms a majority in a district,” have been particularly Matt successful in electing African American candidates. al., Redistricting: Coalition Districts and the Voting et Barreto Rights Act 1 (2011), available at https://www.law.berkeley. edu/files/Coalition.pdf (discussing voting patterns among 2010 Black and Latino voters in Los Angeles County in the election of Kamala Harris as California Attorney General). to “Section 2 cases” references this chapter, Throughout only to those cases not involving bilingual assistance. refer See Supplemental Online Appendix, available at http:// votingrightstoday.org/discriminationreport See id. See id. See id. See infra Chapter 6. An Awakened Ctr., et al., Pew Research Paul Taylor Giant: The Hispanic Electorate Is Likely to Double by 2030 5 (2012), available at http://www.pewhispanic.org/ files/2012/11/hispanic_vote_likely_to_double_by_2030_11- 14-12.pdf. , U.S. Dep’t of for Mississippi, U.S. Dep’t Determination Letters Voting Justice, http://www.justice.gov/crt/records/vot/obj_letters/ (last visited July 23, 2014). state_letters.php?state=ms see also H.R. Rep. No. Katz et al., supra note 5, at 646; 109-478, supra note 8, at 21. note 8, at 23. H.R. Rep. No. 109-478, supra Id. at 21. 1347 (M.D. Ala. 1986). Supp. , 640 F. Crenshaw v. Dillard Id. at 1356–57. , supra note 17, at 53–54. Quiet Revolution in the South at 1373. Supp. , 640 F. Dillard in Alabama 1982– Rights James Blacksher et al., Voting http://www.protectcivilrights.org/ 2006 9 (2006), available at pdf/voting/AlabamaVRA.pdf. Supp. 128, 130 (M.D. Ala. 1984). Graddick, 593 F. Harris v. Supp 517, 526 (M.D. Ala. 1988). Siegelman, 695 F. Harris v. Shows 2010 Census U.S. Census Bureau, Release, Press Black Population has Highest Concentration in the South - (Sept. 29, 2011), available at http://www.census.gov/news room/releases/archives/2010_census/cb11-cn185.html. , U.S. Census Bureau, See Historical Time Series Tables https://www.census.gov/hhes/www/socdemo/voting/ publications/historical/ (last visited July 23, 2014) (download and Registration by Race, A-1. Reported Voting Table November 1964 to Hispanic Origin, Sex, and Age Groups: 2012).

51 52 40 41 42 43 44 45 46 47 48 49 50 27 28 29 30 31 32 33 34 35 36 37 38 39 H.R. Rep. No. 109-478, supra note 8, at 21. , 574 F. Supp. 325, , 574 F. Treen See id. at 429–30 (citing Major v. 355–56 (E.D. La. 1983)). Though the rates of African American voter registration, were there turnout, and elected officials had increased, Section 5 objections “lodged between 1982 and 2004 more interposed between 1965 and 1982 and . . . such than were objections did not encompass minor inadvertent changes[,]” nor does this account for the number of withdrawals. H.R. Rep. No. 109-478, supra note 8, at 21 (citing Nat’l Comm’n Rights Act, supra note 3, at 54). on the Voting Quiet Revolution in the South, supra note 17, at 385. Id. Rights in Louisiana: 1982- Adegbile, Voting See Debo P. L. & Soc. Just. 413, 429 (2008) (“In 2006, 17 S. Cal. Rev. his opposition to the fact, [the governor] ‘publicly expressed concept of a majority black district, stating that districting schemes motivated by racial considerations, however not benign, smacked of racism, and in any case were constitutionally required.’”). Id. Id. at 384. See, e.g., Katz, supra note 5, at 656 (“Courts identified between 1982 and frequently violations of Section 2 more 1992 than in the years since. Of the 92 total violations identified, courts found 46.7% of them during the 1980s.”); Rights Act, supra note see also Nat’l Comm’n on the Voting 3, at 81–83. 1975 House VRA Hearings, supra note 8, at 31. U.S. Comm’n on Civil Rights, Political Participation 12 (1968). Id. at 21. State Bd. of Elections, 393 U.S. 544 (1969). Allen v. Quiet Revolution in the South: The Impact of the Voting Rights Act 1965-1990 33 (Chandler Davidson & Bernard eds., 1994). Grofman at 20 (statement of Hon. Arthur S. Fleming, Chairman, Id. at 20 (statement of Hon. Arthur S. Fleming, Chairman, the U.S. Census U.S. Comm’n on Civil Rights). Additionally, found that the voter turnout rate of African Americans and 44 to 51 percent from other nonwhites in the South rose between the 1964 and 1968 elections despite an overall U.S. Census decline in voting turnout nationally in that year. and Registration Reports: Voting Population Current Bureau, in the Election of November 1968 1 (1969). at app. 1029. “The increase “The increase states. Id. at app. 1029. in all seven covered in Georgia to 19.3 point 0.1 percentage ranged from at app. 1029; see points in Mississippi.” Id. percentage in the Turnout “Voter also id. at app. 1028 tbl. 4 (depicting and 1972 in Southern Elections of 1964, 1968, Presidential Rights Act”). National turnout by the Voting States Covered above the 1964 remained for the 1972 election but dropped states. Id. at app. 1029. rates in four of the seven covered in States with persons vote notes that “[w]here The record national trend traditionally low turnout, despite a strong voters are nonvoting, it seems likely that many of the toward been denied the opportunity persons who had previously supported by survey this conclusion is to vote.” Id. Further, 1975, which indicated upon in relied data that Congress that participation rates among Southern blacks “increased 1964 to 1968. Id. at app. 1031. Though it sharply” from rates declined slightly between 1968 and 1972, the 1972 higher than 1964 rates. Id. remained

26 24 25 21 22 23 18 19 20 13 14 15 16 17 12 Racism on Trial: The Trial: on Racism u-s-citizen-illegally-deported-to-mexico-says-government- endangered-his-life/. Cartagena, supra note 59, at 213. California adopted its English literacy test in 1894 and it was Court. not invalidated until 1970 by the California Supreme 244, 256 (1970). Arizona California, 466 P.2d v. See Castro passed its literacy test in 1912 “in an acknowledged at- tempt to deter the ‘ignorant Mexican vote.’” NALEO Educ. Fund, supra note 52, at 6. , 64 F. Supp. 544 (S.D. Cal. , 64 F. Westminster See Mendez v. 1947) (en banc) (holding 774 (9th Cir. 1946), aff’d, 161 F.2d of Latinos in public schools is unlawful). that the segregation , 347 U.S. 475, 482 (1954) (holding Texas See Hernandez v. de- that the dearth of persons of Mexican or Latin American 25 years “bespeaks scent serving on juries in the previous discrimination,” in violation of the Fourteenth Amendment). county’s Court also held that a Texas In 1977, the Supreme system for impaneling grand juries was unconstitutional. Partida, 430 U.S. 482, 501 (1977). Mexican Castaneda v. 80% of the county but Americans made up approximately to 1972 they made up less than 40% of the 1962 from between 1959 Id. at 486–87 & n.7. Similarly, grand jurors. on Los An- under-represented and 1969, “Mexicans were note geles grand juries by a ratio of 8 to 1.” Johnson, supra Haney Lopez, 59, at 185 (quoting Ian F. Chicano Fight for Justice (2003)) (internal quotation marks omitted). Ian Haney Lopez, Race and Colorblindness After Hernandez 61, 62 (2005). 25 Chicano-Latino L. Rev. and Brown, Hernandez, 347 U.S. at 482. Id. at 479–80. Governor, Cartagena, supra note 59, at 212. In 1918, Texas William of 1000 Hobby established an additional force Rangers. Private men to supplement the work of the Texas citizens also attempted to block the Mexican vote. In 1928 headed to the of Anglo Texans a group Texas, in Welasco, Mexicans let those polls with shotguns and yelling “Don’t Tijerina, Andres in to vote.” Id. (citing Expert Report of Dr. supra note 59, at 4, 8). For example, Mexican-Americans in South Texas were the were in South Texas For example, Mexican-Americans vigilante raids to drive victims of government-sponsored tak In 1874, in a raid aimed at- land grants. them away from every adult, male Mexican ing land south of Corpus Christi, by white of 500 was murdered American in a community See deputized in Brownsville. vigilantes whose leaders were Rights Voting Juan Cartagena, Latinos and Section 5 of The , 18 Nat’l Black L.J. 201, 212 Act: Beyond Black and White Tijerina, Andres Bal- of Dr. n.69 (2004) (citing Expert Report 28, 2001)). Nov. , No. 6:01CV158 (E.D. Tex. Texas deras v. Mexican Americans toward Another example of violence War during World the Los Angeles “Zoot Suit” riots were II, during which “over a period of days, Anglo servicemen while police beat Mexican Americans on the city streets the anyone, only arresting watched…and, if arresting Legacies Texas: victims.” Kevin R. Johnson, Hernandez v. 153, of Justice and Injustice, 25 Chicano-Latino L. Rev. 165 (2005). Racial strife and hate crimes against Mexican Americans have not been completely eradicated. According Latinos to a leading Latino organization, hate crimes against have risen by 40%. Hate Crimes, Mexican Am. Legal Def. & - Educ. Fund, http://www.maldef.org/immigration/public_poli cy/hate_crimes/ (last visited July 23, 2012).

66 67 60 61 62 63 64 65 59 - - During the Great Depression, Mexican Americans were Mexican Americans were Depression, During the Great what came to be known as the Mexican targeted through so did the level of As unemployment rose, “repatriation.” Mexican Americans and possibly 400,000 hostility toward out forced U.S. citizens, were people, many of whom were Koch, U.S. Urged to Apologize for Wendy of the country. 5, 2006), http://www. (Apr. 1930s Deportations, USA Today usatoday.com/news/nation/2006-04-04-1930s-deportees- cover_x.htm. Although not at a massive scale, incidents of unlawful deportation of U.S. citizens of Mexican ancestry have continued to take place. In 2007, for example, Peter Guzman, a U.S. citizen was deported to Tijuana with $3 in his pocket. He had not visited Tijuana than a de- in more He survived by begging and cade and knew no one there. garbage cans. A lawsuit was filed by the ACLU eating from in 2008. Family of U.S. Citizen Illegally Deported to Mexico His Life, Am. Civil Liberties Says Government Endangered Union (Feb. 27, 2008), https://www.aclusocal.org/family-of- and Vice-President. ticipate in the election of the President Id. at 187–88 Katherine Culliton-González, Time to Revive Puerto Rican Rights, 19 Berkeley La Raza L.J. 27, 29–31 (2008). Voting II, when Puerto War This migration accelerated after World to work in East Coast factories and recruited Ricans were has been and New York to support seasonal farm labor. but large continues to be the most popular point of entry, in Chicago also located concentrations of Puerto Ricans are and Philadelphia. Id. at 43. Later, the Foraker Act of 1900 established a civilian govern- Later, ment in Puerto Rico consisting in part of a governor and of the United court appointed by the President supreme - States. César A. López Morales, Note, A Political Solu Disenfranchisement: Reconsidering tion to Puerto Rico’s Long- Role in Bringing Equality to America’s Congress’s Forgotten Citizens, 32 B.U. Int’l L.J. 185, 192–93 (2014). authorized Puerto Ricans to elect their own Congress governor and draft their own constitution in 1947 and 1950; for a constitution providing approved in 1952, Congress Id. the establishment of the Commonwealth of Puerto Rico. because state electors have exclusive at 195. Importantly, the 3.7 million U.S. citizens authority to elect the President, to par unable on the island are of Puerto Rico who reside The Latino community in the United States, although often in the United States, The Latino community is in fact comprised to as a cohesive ethnic group, referred aspects, includ quite diverse in important that are of groups tracing their family heritage to ing race and country of origin, worldwide.” Lopez than 20 Spanish-speaking nations “more et al., supra note 51, at 3. Ricans comprise 64.6 % Mexican Americans and Puerto Id. the U.S., respectively. and 9.5% of all Latinos in gov- of the Texas took control In 1836, Anglo-Americans was ernment, of Mexico, and eventually Texas then part Andres Expert Report of Dr. annexed to the U.S. in 1845. United States , 2011 WL 6476787 v. Tijerina Texas at 2–3, A Brief History of Perea, F. (D.D.C. Aug. 8, 2011); Juan the Trajectories Tracing Border: Race and the U.S.-Mexican 283, 284–85 (2003). Shortly of Conquest, 51 UCLA L. Rev. Hidalgo in 1848 which ended of Guadalupe the Treaty after, ceded to the United States the Mexican–American War, of land that belonged to Mexico, including portion a great and parts Arizona and New Mexico California, present-day of Utah, Nevada, and Colorado. Id.

58 57 56 53 54 55

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note 84.

at 294–95. at 295. at 295. Challenge Dropped Against Most Atkin- Brannon Stewart, Challenge Dropped News (Oct. 28, 2004). , WALB son Voters et al., supra note 50, at 6. Paul Taylor Rights in Indian Country 2 Am. Civil Liberties Union, Voting (Sept. 2009), available at https://www.aclu.org/files/pdfs/ votingrights/indiancountryreport.pdf. Id. at 16. 2009 National Directory of Latino NALEO Educ. Fund, 2009 National Directory NA- Elected Officials (on file with the Lawyers’ Committee); of Latino Elected LEO Educ. Fund, 2013 National Directory Officials (on file with the Lawyers’ Committee). Lublin et al., supra note 43, at 532. See, e.g., League of United Latin American Citizens Perry, 548 U.S. 399, 408, 423–43 (2006) (LULAC) v. west (holding that changes to a Latino-majority district in United States, 887 F. v. violated Section 2); Texas Texas by Supp. 2d 133, 135 (D.D.C. 2012) (denying preclearance engaged unanimously concluding that the State of Texas and in intentional discrimination against African-American Con- Latino voters in enacting the 2011 State Senate and plans, and that the Congressional redistricting gressional plan was retrogressive). Fla., 475 F. Osceola County, See, e.g., United States v. the Supp. 2d 1220, 1235 (M.D. Fla. 2006) (holding that Hispanic votes in violation of voting system diluted county’s Section 2). See Supplemental Online Appendix, supra note 45. 1303 (1996). Colorado, 97 F.3d Sanchez v. Id. at 1307. Id. Id. at 1323. See id. at 1308, 1319. Id. at 1329. Long County, No. 2:06-cv-00040 (S.D. United States v. Ga., Feb. 10, 2006). Id. Russ Bynum, Georgia County Questions 95 Hispanics’ , Fla. Times-Union (Oct. 28, 2004), http://jack- Right to Vote sonville.com/apnews/stories/102804/D860K2N01.shtml. New Perspectives on & Arthur L. Burris, New Perspectives Benjamin Highton in the United States, 30 Am. Pol. Res. Turnout Latino Voter 285, 300 (2002). (Nov. Population Survey, U.S. Census Bureau Current 2012). supra See generally Highton & Burris, Id. Id. Id. note 69, at 1509–10. de la Garza & DeSipio, supra Highton & Burris, supra note 84, at 294. , 17 1982-2006 in Texas: Rights Nina Perales et al., Voting 713, 726 (2008). L. & Soc. Just. S. Cal. Rev. (1982). S. Rep. No. 97-417, at 28–29 Id. at 29. Gingles, 478 U.S. 30, 69 (1986). Thornburg v. - Katz et al., supra note 5, at app. For complete VRI Data base Master List, visit http://www.sitemaker.umich.edu/ votingrights/home, select “Final Report” and download “MasterList.xls.” of Latino NALEO Educ. Fund, 1996 National Directory Elected Officials (on file with the Lawyers’ Committee).

112 113 114 115 98 99 100 101 102 103 104 105 106 107 108 109 110 111 84 85 86 87 88 89 90 91 92 93 94 95 96 97 42 U.S.C. §§ 1973b(f)(1)–(2). Regester, 412 U.S. 755, 769 (1973). White v. Id. at 768 (first alteration in original). Supp. 1298, 1303–04 of Los Angeles, 756 F. Cnty. Garza v. cert. 1990), 763 (9th Cir. (C.D. Cal. 1990), aff’d, 918 F.2d denied, 498 U.S. 1028 (1991). Id. at 1351. Ctr., & Mark Hugo Lopez, Pew Research Anna Brown Mapping the Latino Population, By State, County and City 4 (2013), available at http://www.pewhispanic. org/2013/08/29/mapping-the-latino-population-by-state- a complete county-and-city/; see generally id. (providing by and maps of the Latino population growth breakdown area). state, county and metropolitan de la Garza & Desipio, supra note 69, at 1492. Pub. L. No. 94- Rights Act Amendments of 1975, Voting 73, § 203, 89 Stat. 400, 401–02. See also de la Garza & DeSipio, supra note 69, at 1481–82. Cartagena, supra note 59, at 212. The 1975 Amendments and federal observer protections extended preclearance voting of than 5 percent to any jurisdiction in which more election of a single language minority, age citizens were only in English in the 1972 materials had been prepared age of voting election, and less than 50 percent presidential for or voted in the 1972 presidential citizens had registered § 203; Rights Act Amendments of 1975 election. Voting see also de la Garza & DeSipio, supra note 69, at 1481–82. mandated in jurisdictions Bilingual election materials were than 5 a single language minority constituted more where of the voting age population and the illiteracy rate percent among the language minority was higher than the national English illiteracy rate, and the use of literacy tests in voter Rights permanently banned. See Voting were registration Act Amendments of 1975 § 203. Katzenbach v. Morgan, 384 U.S. 641, 646 (1966). Katzenbach v. See Brief of National Latino Organizations as Amici Curiae Ala. in Support of Respondents at 11–12, Shelby Cnty., Holder, 133 S. Ct. 2612 (2013); de la Garza & DeSipio, v. supra note 69, at 1492. note 52, at 6. NALEO Educ. Fund, supra Id. 42 U.S.C. § 1973b(e). estimated that in process during the legislative Testimony 330,000 Puerto Ricans had been approximately New York, of the literacy test. as a result registering from prevented not only discriminatory on their face, The literacy tests were ‘sud- but also in application: “literacy test certificates would denly disappear’ causing delays of hours, if not the entire or how basic supplies like pencils them, to replace day, take would be missing whenever Puerto Ricans sought to the test.” Cartagena, supra note 59, at 206. NALEO Educ. Fund, supra note 52, at 6. NALEO Educ. The literacy Culliton-González, supra note 57, at 29–31. a certificate could not present test was used for voters who educated in English up to the demonstrating that they were the official language eighth grade. Even though English was 1946, inspectors often of schools in Puerto Rico until Puerto Rican schools. Rodolfo O. denied certificates from Change the Save the Baby, de la Garza & Louis DeSipio, Latino Electoral Participation Tub: and Scrub the Bathwater, , 71 Rights Act Coverage of Voting After Seventeen Years 1479, 1493 (1993). L. Rev. Tex.

79 79a 80 81 82 83 76 77 78 74 75 70 71 72 73 68 69

32. demos.org/sites/default/files/publications/IHS%20Report- Demos.pdf. 386 F. Supp. 2d 1108, 386 F. Charles Mix Cnty., Blackmoon v. permitting discovery on plaintiff’s 1110 (D.S.D. 2005) (order motion for summary judgment). See id. at 1112. Am. Civil Liberties Union, supra note 114, at Blackmoon, 2005 WL 2738954, at *1. See id. Id. at *2. Am. Civil Liberties Union, supra note 114, at 32. McDonald, supra note 118, at 55. Supp. 2d 976, 1028 (D.S.D. Hazeltine, 336 F. Bone Shirt v. 2004). at 592–93. Emery, 615 N.W.2d Id. at 597. Id. at 593. Council, Issue Memorandum 95- S.D. Legislative Research 36, Majority-Minority Districts: Legislative Reapportionment Johnson 6 (1995), available at http://legis. After Miller v. sd.gov/docs/referencematerials/IssueMemos/im95-36.pdf. Supp. 2d at 1028. Bone Shirt, 336 F. Rights in South Dakota: Laughlin McDonald et al., Voting L. & Soc. Just. 195, 196 (2007); 1982-2006, 17 S. Cal. Rev. see also Partial List of Determination Pursuant to Voting (Jan. Rights Act of 1965, as Amended, 41 Fed. Reg. 784 5, 1976). of Sec- requirement For a discussion of the pre-clearance tion 5, see Chapter 1. McDonald et al., supra note 167, at 196–97. McDonald, supra note 118, at 140. Hazeltine, No. 5:02-cv- Complaint, Quick Bear Quiver v. 05069-KES (D.S.D. 2002). Hazeltine, No. at 2, Quick Bear Quiver v. Consent Order 5:02-cv-05069-KES. Id. at 2–3. McDonald, supra note 118, at 140. 1011, 1016 (2006). Hazeltine, 461 F.3d Bone Shirt v. Id. Id. at 1019. Id. at 1029. 05-4017, 2005 WL CIV. Charles Mix Cnty., Blackmoon v. 2738954, at *3 (D.S.D. Oct. 24, 2005). , 518 F.2d 1253, 1254 (8th Dakota, 518 F.2d South Little Thunder v. 1975). Cir. Id. at 1254. Id. at 1254–55. Id. at 1255. note 114, at 7. Am. Civil Liberties Union, supra 241, 243 (8th Cir. Dakota, 636 F.2d South United States v. 1980). Id. at 244. Id. at 243. (D.S.D. , No. 1:99-cv-01024-RHB Cnty. Day United States v. 2000). Am. Civil Liberties Union, supra note 114, at 19. Id. Id. at 7, United Amended Consent Judgment and Decree , No. 1:99-cv-01024-RHB; see also Am. Day Cnty. States v. Civil Liberties Union, supra note 114, at 19. 590, 593 (S.D. 2000). Hunt, 615 N.W.2d Emery v.

180 181 182 183 184 185 186 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 146 147 148 149 150 151 152 153 154 155 156 157 158 159

at 18. Nat’l Congress of Am. Indians, supra note 132. Nat’l Congress Ryan Enfranchising Native Americans After D. Dreveskracht, Duty to Act, 70 Nat’l Holder: Congress’s Shelby County v. 193, 205 (2013). Guild Rev. Law. 1015, 1023 (8th of Thurston, Neb., 129 F.3d Cnty. Stabler v. 1997). Cir. supra note 136, at 205. Dreveskracht, See Am. Civil Liberties Union, supra note 114, at 52–53. National Caucus of Native American of State Legislators, Nat’l Conf. of St. Legis., http://www.ncsl.org/research/ state-tribal-institute/national-caucus-native-american-state- “76 legislators.aspx (last visited July 28, 2014) (reporting 17 states”). members from Native Vote: American Indians, the Daniel McCool et al., Native Vote: 48–67 (2007). Rights Act, and the Right to Vote Voting Separate listings identifying each matter in these categories is included in the Supplemental Online Appendix, supra note 45, to this Report. Injunction Re: Plaintiffs’ Motion for a Preliminary Order Bethel, No. 3:07-cv- Against the State Defendants, Nick v. 00098 (D. Alaska July 30, 2008). Bethel, No. 3:07-cv-00098 Nick v. Settlement Agreement, (D. Alaska Feb. 16, 2010). Ensuring Access to the Ballot for American Wang, Tova Indians & Alaska Natives: New Solutions to Strengthen American Democracy 9 (2012), available at http://www. Current Population Survey: Voting & Registration Supple- Survey: Voting Population Current 2008). (Nov. ment, U.S. Census Bureau & Registration Supple- Survey: Voting Population Current 2012). (Nov. ment, U.S. Census Bureau Sisseton Indep. Sch. Dist., No. 54-5, See Buckanaga v. 1986). 469, 474–75 (8th Cir. S.D., 804 F.2d Id. at 12. Id. Rights in Alaska: & Moira Smith, Voting Natalie Landreth - 2006), available at http://www.pro 1982-2006 4 (Mar. tectcivilrights.org/pdf/voting/AlaskaVRA.pdf. Am. Civil Liberties Union, supra note 114, at 7. Id. Id. Id. McDonald, supra note 118, at 26. Id. at 46. of Fast Facts, Nat’l Congress Counts: Every Native Vote - Am. Indians, available at http://api.ning.com/files/p5H7 N8Ot6oPr2YAnodb2juIJeBCSZyUzu*8mwLExUIWlcHSI05t l5aJYJM44Plw-YObm-USu6-wzIyZ5e7uaDvXMhxGA*YxQ/ NVInfographic.compressed.pdf. President Richard Nixon, Message to the Congress of Message to the Congress Nixon, Richard President Indians (July 8, 1970), the United States on the American available at http://www.presidency.ucsb.edu/ws/index. php?pid=2573&st=&st1=. note 114, at 5 (quoting Am. Civil Liberties Union, supra United States, 164 U.S. 240, 240, 246 (1896)). Draper v. Fight for Laughlin McDonald, American Indians and the terminated the Rights 5–7 (2010). Congress Equal Voting in 1871. process treaty-making Id. at 11. Id. at 10, 13. Comm’n, Final Report 66 (1977). Am. Indian Policy Review McDonald, supra note 118, at 6.

141 136 137 138 139 140 141a 142 143 144 145 133 134 135 123 124 125 126 127 128 129 130 131 132 116 117 118 119 120 121 122

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NATIONAL COMMISSION ON VOTING RIGHTS 218 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES NATIONAL COMMISSION ON VOTING RIGHTS 219 102nd Cong. 102nd Cong. the S. Comm. on the Judiciary, Constitution of Language Assistance Hearings on 134 (1992) [hereinafter of Sen. Orrin Hatch). Amendments of 1992] (statement Voices of Democracy: Asian Americans Advancing Justice, Voices Asian Americans and Language Access During the 2012 Asian Elections 5 (2013) (citing Asian Pacific Am. Legal Ctr., Americans at the Ballot Box: The 2008 General Election in See Chen & Lee, supra note 195, at 361. et al., Asian American Political Participation: Janelle Wong Emerging Constituents and Their Political Identities 3 (2011). U.S. Ctr., Cohn, Pew Research S. Passel & D’Vera Jeffrey 2005–2050 2 (2008). Population Projections: for Am. Karthick Ramakrishnan & Farah Z. Ahmad, Ctr. Demographics: Part of the “State of Asian Ameri- Progress, cans and Pacific Islanders” Series 2 (2014). note 194. supra Brown, al., supra note 224, at 99. et Wong See Chen & Lee, supra note 195, at 392. Id. Id. (footnote omitted). albeit increasing, See id. at 396 (discussing historically low, - geographical compactness as one barrier to Asian Ameri cans’ ability to bring successful Section 2 claims). et al., supra note 224, at 27. Wong Population Survey, U.S. Census Bureau Id.; see Current 2012). (Nov. Id. at 56. Group: See Seung-Jin Jang, Get Out on Behalf of Your Electoral Participation of Latinos and Asian Americans, 31 that 511, 512 (2009) (pointing to past research Pol. Behav. and nativity” significantly affected found “length of residence voter participation rates). Id. at 516. Rights Act, Congress In its 1975 amendment of the Voting mandated the use of bilingual assistance materials in high populations of language jurisdictions with proportionally minorities, indicating that “voting discrimination against citizens of language minorities is pervasive and national in Rights Act Amendments of 1975, Pub. L. scope.” Voting No. 94-73, § 203, 89 Stat. 400, 401 (1975). Extension of the Voting Rights Act: Hearings on H.R. Rights Act: Hearings on H.R. Extension of the Voting the and H.R. 3501 Before 939, H.R. 2148, H.R. 3427, Rights of the H. Comm. Subcomm. on Civil & Constitutional of Rep. 94th Cong. 926 (1975) (statement on the Judiciary, R. Roybal). Edward Id. Assistance Amendments of See Hearings on Language by Sen. Hatch). 1992, supra note 217, at 144 (statement (applying the bilingual See 42 U.S.C. § 1973aa-1a(b)(2)(A)(II) than in which “more to areas voting materials requirement age of such political subdivi- 10,000 of the citizens of voting of a single language minority and are members sion are limited-English proficient”). See Hearings on Language Assistance Amendments Morton H. of 1992, supra note 217, at 254 (letter from Halperin & Antonio J. Califa, Legislative Counsel, Am. Civil Liberties Union) (discussing the need for expanded coverage); id. at 294 (statement of the Nat’l Asian Pacific in Am. Legal Consortium) (discussing the communities a 10,000 person these jurisdictions that would benefit from population benchmark).

239 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 218 219 220 221 222 Chen & Lee, supra note 195, at 378 (citing Immigration and Nationality Act of 1965 (Hart-Cellar Act), Pub. L. No. 89-236, 79 Stat. 911). Id. Rights Act Language Assistance Amendments of Voting the Subcomm. on the 1992: Hearing on S. 2236 Before Act of Dec. 17, 1943, Pub. L. No. 78-199, 57 Stat. 600 the Chinese Exclusion Act). (repealing Act of July 2, 1946, Pub. L. No. 79-482, 60 Stat. 416 exclusion of Indians and Filipinos and granting (repealing naturalization rights). Immigration and Nationality Act of 1952, Pub. L. No. 85-414, § 311, 66 Stat. 163, 239 (permitting Japanese Americans and other Asian Americans to naturalize). Exec. Order No. 9066, 7 Fed. Reg. 1407 (1942). Exec. Order Saito, Symbolism Under Siege: Japanese Natsu Taylor and the “Racing” of Arab Americans as American Redress , 8 Asian L.J. 1, 4 (2001). “Terrorists” Pan-Ethnicity Revis- Cho & Albert H. Yoon, K. Tam Wendy ited: Asian Indians, Asian American Politics, and the Voting Rights Act, 10 Asian Pac. Am. L.J. 8, 9 (2005). Yick Wo v. Hopkins, 118 U.S. 356, 358–59 (1886). v. Wo Yick supra note 201, at 223. Fallinger, Id. at 227–28. 118 U.S. 356, at 373–74. Wo, Yick Id. at 370. supra note 201, at 233–34. Fallinger, United States, 323 U.S. 214, 219 (1944). v. Korematsu Naturalization Act of 1790, ch. 3, 1 Stat. 103. Naturalization Act of 1870, ch. 254, 16 Stat. 254, 256. Cas. 223, 224 (C.C.D. Cal. 1878). , 1 F. Ah Yup In re Bhagat Singh Thind, 261 U.S. 204, 214–15 United States v. (1923). at 125: Four Simple Lessons on Wo Yick Marie A. Fallinger, Court, 17 Mich. J. Race & L. the Contemporary Supreme 217, 228 (2012) (footnotes omitted). Ming Hsu Chen & Taeku Lee, Reimagining Democratic Ming Hsu Chen & Taeku Rights Act, 3 Inclusion: Asian Americans and the Voting supra 359, 360 (2013); see also Brown, U.C. Irvine L. Rev. note 194. See, e.g., Chinese Exclusion Act of 1882, ch. 126, 22 Stat. by Act of Dec. 17, 1943, Pub. L. No. 78-199, 58, repealed 57 Stat. 600. , No. 12-5003-KES, 2013 WL 4017036, at Gant, No. 12-5003-KES, 2013 v. Brooks *1 (D.S.D. Aug. 6, 2013). U.S. Hispanic and Asian Populations See Anna Brown, Pew Res. Center Reasons, but for Different Growing, (June 26, 2014), available at http://www.pewresearch.org/ fact-tank/2014/06/26/u-s-hispanic-and-asian-populations- 2012, that since (reporting growing-but-for-different-reasons at a rate of 2.9 percent, the Asian population has grown rate of 2.1 percent). to the Hispanic growth compared note 114, at 32. Am. Civil Liberties Union, supra Id. Id. Id. Acting Grace Chung Becker, Determination Letter from of Justice, to Charles Mix Dep’t Assistant Att’y Gen., U.S. http://www.justice. S.D. (Feb. 11, 2008), available at Cnty., gov/crt/records/vot/obj_letters/letters/SD/l_080211.pdf. Blackmoon v. Charles Mix Cnty., Charles Mix Cnty., at 2–3, Blackmoon v. Consent Decree 4, 2007). No. 05-4017, (D.S.D. Dec.

215 216 217 212 213 214 209 210 211 202 203 204 205 206 207 208 197 198 199 200 201 195 196 193 194 188 189 190 191 192 187 - ized%20voting%20analysis%20112911%20-%20DRAFT.pdf. See generally id. Patterns Int’l Consulting, LLC, Voting Frontier Lisa Handley, by Race/Ethnicity in Recent Kansas Statewide and Legisla- tive Elections 6 (2012), available at http://kslegislature. - org/li_2012/b2011_12/committees/misc/ctte_s_re (last visited July 22, 2014). app_1_20120118_03_other.pdf Id. H.R. Rep. No. 109-478, at 34 (2006). Failing Predictions in Pursuit of Proportional in Pursuit of Proportional See Felicia Sze, Failing Predictions in Strength Assuring Asian American Voter Representation: 2 Litigation, 11 Asian Am. L.J. 97, San Francisco Through 105 (2004). Id. at 1202. Supp. 2d 618, McConnell, 201 F. Council v. Colleton Cnty. 623 (D.S.C. 2002). Id. at 641. Id. at 643. Supp. 2d 291, Galvin, 300 F. v. Force Black Political Task 294 (D. Mass. 2004). Id. at 296. Id. at 310. Id. at 317. v. Sunquist, 209 Affairs Council African-Americans. Tenn. W. 3d 835 (6th Cir 2000). F. Supp. 2d 976, 980 (D.S.D. Hazeltine, 336 F. Bone Shirt v. 2004). Id. at 1017 (alterations in original). See generally Memorandum, Gary King & Ken Strasma to Arizona Independent Redistricting Commission, Racially 28, 2011), available at http:// polarized voting analysis (Nov. azredistricting.org/Meeting-Info/AZ%20racially%20polar Asian American Access Def. & Educ. Fund, Asian American Asian Am. Legal Elections 7 (2009), available to Democracy in the 2008 at http://www.aaldef.org/docs/AALDEF-AA-Access-to- Democracy-2008.pdf. Id. at 12. Id. at 13. Id. at 9. Id. at 14. Fund, Asian American Access Asian Am. Legal Def. & Educ. Elections 16 (2013). to Democracy in the 2012 supra note 45. See Supplemental Online Appendix, See id. See id. King, Loretta See id.; see also Determination Letter from of Justice, to State Acting Assistant Att’y Gen., U.S. Dep’t of Georgia (May 29. 2009), available at http://www.justice. gov/crt/records/vot/obj_letters/letters/GA/l_090529.pdf submitted for (describing the voter verification program preclearance). at 375 See Chen & Lee, supra note 195, at 390; but see id. n.80 (pointing to eight Section 2 cases concerning Asian American voters). See generally id. Supp. 2d 840 (E.D. Wis. 2012).

, 849 F. Members of Wis. Accountability Bd., 849 F. Gov’t Baldus v.

26c 27 28 29 258 17 18 19 20 21 22 23 24 24a 24b 25 26 26a 247 248 249 250 251 252 253 254 255 256 257 26b , 946 F. Supp. 1174, 1175–76 (D.S.C. Beasley, 946 F. Smith v. 1996). - , Redrawing the Lines, http://redrawing Glossary of Terms (last visited July thelines.sitewrench.com/glossaryofterms 22, 2014). Mukasey, 573 F. Austin Mun. Util. Dist. No. One v. Nw. on and remanded Supp. 2d 221, 263 (D.D.C. 2008), rev’d , 557 U.S. 193, 197 (2009). other grounds See generally Bruce M. Clarke & Robert Timothy Reagan, Redistricting Litigation; An Overview of Legal, Statistical, and Case-Management Issues (2002). Id. Gingles, 478 U.S. 30, 44–45 (1986). Thornburg v. 1996). 1303, 1308 (10th Cir. Colorado, 97 F.3d Sanchez v. Id. at 1329. 2000) 1113, 1127 (9th Cir. Cooney, 230 F.3d Old Person v. (alterations in original). 2002). 1036, 1051 (9th Cir. , 312 F.3d Brown Old Person v. Reynolds v. Sims, 377 U.S. 533, 555 (1964). Reynolds v. Id. at 546. Id. at 555. See generally U.S. Comm’n on Civil Rights, Political in the Participation, A study of the participation by Negroes in 10 Southern States since electoral and political processes Act of 1965 21–39 (1968). Rights passage of the Voting Krafka, Fed. Judicial Ctr., & Carol Patricia Lombard Study: Final 2003—2004 District Court Case-Weighting Report to the Subcommittee on Judicial Statistics of the Conference Judicial the of Resources Judicial on Committee of the United States 5 (2005). DeGrandy, 512 U.S. 997, 1011–12 (1994). Johnson v. Wong et al., supra note 224, at 116. et Wong Id. Id. at 75. Id. at 65. http://apalc.org/ County 24 (2011), available at Los Angeles sites/default/files/APALC_BallotBox_LA2008_FINAL.pdf. Vote, New Am. Release, Asian & Pacific Islander Press Asian Americans, Ignore Poll Finds Major Political Parties for Engagement Remain Huge Gaps and Opportunities http://www.apiavote. Untapped (May 4, 2012), available at org/newsroom/press-releases/2012/new-poll-finds-major- political-parties-i. Pacific American Political See generally National Asian Nakanishi & James Lai eds., Almanac (2014–2015) (Don T. 2014). Bobby U.S. Representative notable exceptions are Two District and Attorney General of 3rd Virginia’s Scott from California, Harris. Scott, who is both Asian Ameri- Kamala African can and African American, was elected in a majority American district. Harris, also Asian American and African American, was elected in a statewide election. For further discussion of how voting patterns in Los Angeles County in the election of Harris may demonstrate coalitions between et al., supra note 43, see Barreto multiple minority groups, at 5–6.

16 7 8 9 10 11 12 13 14 15 CHAPTER 5 1 2 3 4 5 6 243 244 245 246 240 241 242

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES

NATIONAL COMMISSION ON VOTING RIGHTS 220 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES NATIONAL COMMISSION ON VOTING RIGHTS 221 - able at http://www2.census.gov/prod2/decennial/ July 23, 2014). (last visited documents/1980a_ndABCD.zip General Population Characteristics, Montana (1990 Cen- 5, available at http:// 7, Table sus), U.S. Census Bureau www2.census.gov/prod2/decennial/documents/1980a_ mtABCD.zip (last visited July 23, 2014). at 900. Mont., 363 F.3d Blaine Cnty., Id. at 900–01. American Indians, the Daniel McCool et al., Native Vote: 129 (2007). Rights Act, and the Right to Vote Voting Id. at 1232. Id. at 1232–35. Id. at 1233–34. 15173 Village of Port Chester, No. 06 Civ. United States v. Jan. 17, 2008). (SCR), 2008 WL 190502, at *1 (S.D.N.Y. Supp. 2d Village of Port Chester, 704 F. United States v. 2010). 411, 419 (S.D.N.Y. Id. at 420. Id. at 438. Id. at 431–37. for Ctr. Village of Port Chester, Brennan United States v. 22, 2011), https://www.brennancenter.org/ Justice (Apr. legal-work/united-states-v-village-port-chester. 897, 900 (9th Mont., 363 F.3d Blaine Cnty., United States v. 2004). Cir. General Population Characteristics, Montana (1980 Cen- 15, available at http:// 10, Table sus), U.S. Census Bureau www2.census.gov/prod2/decennial/documents/1980a_ mtABCD.zip (last visited July 23, 2014). United States v. Benson Cnty., Cnty., Benson United States v. at 3 ¶ 10, Consent Decree 10, 2000). N.D., No. A2-00-30 (D. N.D. Mar. N.D., Cnty., Benson Complaint at ¶ 10, United States v. 6, 2000). No. A2-00-30 (D. N.D. Mar. Id. Cnty., Benson United States v. at 4 ¶ 13, Consent Decree 10, 2000). N.D., No. A2-00-30 (D. N.D. Mar. N.D., Cnty., Benson Complaint at ¶ 19, United States v. 6, 2000). No. A2-00-30 (D. N.D. Mar. Cnty., Benson United States v. at 5 ¶ 2, Consent Decree 10, 2000). N.D., No. A2-00-30 (D. N.D. Mar. Id. at 7 ¶ 6. 2d 1220, Supp. Fla., 475 F. Cnty., Osceola United States v. 1235 (M.D. Fla. 2006). Id. at 1222. Id. at 1223. Id. at 1224. Id. the same time, the County was Id. at 1225–26. Around Spanish-speaking citizens an equal oppor failing to provide tunity to vote. In 2002, the United States sued the County alleging this denial of equal opportunity to vote based of poll officials to communicate effectively on “the failure to allow certain with Spanish-speaking voters, the refusal person Spanish-speaking voters assistance in voting by the by poll officials.” Id. at of their choice, and hostile remarks though in 1226. The case was settled by consent decree, 2005 the United States advised the county that its Spanish was not equal in scope and effectiveness language program and the county agreed, to its English language program, as a guide in writing, to continue using the consent decree to to complying with the VRA and to take additional steps Spanish language program. its improve

79 80 81 82 68 69 70 71 72 73 74 75 76 77 78 55 56 57 58 59 60 61 62 63 64 65 66 67 -

at 11. United States v. Benson Cnty., N.D., Benson Cnty., Complaint at ¶ 10, United States v. 6, 2000). No. A2-00-30 (D.N.D. Mar. General Population Characteristics, North Dakota (1980 15, avail- 11, Table Census), U.S. Census Bureau ings Of The National Commission On The Voting Rights Act, ings Of The National Commission On The Voting The Minority Voters: 2005: A Supplement to: Protecting 1982-2005 7–8 (2006). Rights Act at Work, Voting Id. Id. Separate listings identifying each matter in these categories is included in the Supplemental Online Appendix to this available at http://www.votingrightstoday.org/ report, discriminationreport. Assistant Thomas E. Perez, Determination Letter from 24, of Justice, to state of Miss. (Mar. Att’y Gen., U.S. Dep’t 2010), available at http://www.justice.gov/crt/records/vot/ obj_letters/letters/MS/l_100324.php. Quiet Revolution in the South: The Impact of the Voting Quiet Revolution in the South: The Impact of the Voting Rights Act 1965-1990 23 (Chandler Davidson & Bernard eds., 1994). Grofman Id. United States, 446 U.S. 156, 184 n.19 City of Rome v. (1980) (quoting U.S. Comm’n on Civil Rights, The Voting After 206–07 (1975)). Years Rights Act: Ten supra note 45, at 24. Davidson & Grofman, Id. at 17. Rights Act, Highlights Of Hear Nat’l Comm’n on the Voting Lodge, 458 U.S. 613, 616 (1982). Rogers v. Gingles, 478 U.S. 30, 48 (1986). Thornburg v. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 v. Austin Mun. Util. Dist. No. One Nw. (2009). Stephen Ansolabe- Nathaniel Persily, Brief for Professors Charles Stewart III as Amici Curiae on Behalf of and here, v. Austin Mun. Util. Dist. No. One Neither Party at 9, Nw. Holder, 557 U.S. 193 (2009). Id. Id. at 10. Determination Letter from Isabelle Katz Pinzler, Acting Assis- Isabelle Katz Pinzler, Determination Letter from of Justice, to state of S.C. (Apr. tant Att’y Gen., U.S. Dep’t 1, 1997), available at http://www.justice.gov/crt/records/vot/ obj_letters/letters/SC/SC-2090.pdf. Boyd, Assistant Att’y Ralph F. Determination Letter from 16, 2001), (Nov. of Justice, to state of Tex. Gen., U.S. Dep’t - available at http://www.justice.gov/crt/records/vot/obj_let ters/letters/TX/TX-2930.pdf. Determination Letter from Ralph F. Boyd, Jr., Assistant Att’y Boyd, Jr., Ralph F. Determination Letter from of Fla. (July 1, 2002), of Justice, to state Gen., U.S. Dep’t - available at http://www.justice.gov/crt/records/vot/obj_let ters/letters/FL/FL-1040.pdf. Deval L. Patrick, Acting Assistant Determination Letter from of Justice, to state of La. (Aug. 12, Att’y Gen., U.S. Dep’t 1996), available at http://www.justice.gov/crt/records/vot/ obj_letters/letters/LA/LA-2310.pdf. Determination Letter from Ralph F. Boyd, Jr., Assistant Att’y Boyd, Jr., Ralph F. Determination Letter from 20 2002), of Ariz. (May, of Justice, to state Gen., U.S. Dep’t - available at http://www.justice.gov/crt/records/vot/obj_let ters/letters/AZ/l_020520.pdf. David Bositis, Joint Ctr. for Political & Econ. Studies, Reseg- for Political & Econ. Joint Ctr. David Bositis, in Southern Politics 1 (2011). regation Report of Sekou M. Franklin, Sekou M. Franklin, Expert Rights, Nashville, Tenn. Voting Ph.D. 6, Na’l Comm’n on (on file with the (expert report) Reg’l Hearing (May 8, 2014) Lawyers’ Committee).

53 54 49 50 51 52 45 46 47 48 41 42 43 44 37 38 39 40 35 36 33 34 32 30 31

at 3.

Id. at 856. Id. at 855. Id. at 859. R. Alexander Acosta, Assistant Determination Letter from Justice, to state of La. (Dec. 12, Att’y Gen., U.S. Dep’t 2003), available at http://www.justice.gov/crt/records/vot/ obj_letters/letters/LA/LA-2430.pdf. Id. Id. records/vot/obj_letters/letters/VA/VA-1280.pdf. Id. Id. Id. Id. Id. Id. Boyd, Assistant Att’y Ralph F. Determination Letter from (May Va. of Justice, to Northampton Cnty., Gen., U.S. Dep’t 19, 2003), available at http://www.justice.gov/crt/records/ vot/obj_letters/letters/VA/VA-1310.pdf. Id. Id. Id. Id. Id. J. Michael Wiggins,Determination Letter from Acting Assis- of Justice, to Northampton Cnty., tant Att’y Gen., U.S. Dep’t (Oct. 21, 2003), available at http://www.justice.gov/crt/ Va. records/vot/obj_letters/letters/VA/VA-1320.pdf. Members of Wis. Accountability Bd., 849 F. Gov’t Baldus v. Supp. 2d 840, 847 (E.D. Wis. 2012). Id. at 854. Id. Id. at 855–856. Strickland, 556 U.S. 1 (2009). Bartlett v. Supp. 2d at 855–856. Baldus, 849 F. Id. at 856. Id. at 855. Jackson v. Wolf Point Sch. Dist., No. Point Sch. Wolf at 5, Jackson v. Consent Decree 13, 2014). (D. Mont. Mar. CV-13-65-GF-BMM-RKS Id. Point Sch. Dist., Wolf at 7 ¶ 7, Jackson v. Consent Decree 13, 2014). Mar. (D. Mont. No. CV-13-65-GF-BMM-RKS Boyd, Assistant Att’y Ralph F. Determination Letter from of Justice, to state of Ariz. (May 20, 2002), Gen., U.S. Dep’t - available at http://www.justice.gov/crt/records/vot/obj_let ters/letters/AZ/l_020520.pdf. Boyd, Assistant Att’y Ralph F. Determination Letter from Ga. of Justice, to Northampton Cnty., Gen., U.S. Dep’t (Sept. 28, 2001), available at http://www.justice.gov/crt/ Id. Id. Id. Id. at 5. Jackson Adopting Findings & Recommendations, Order (D. Point Sch. Dist., No. CV-13-65-GF-BMM-RKS Wolf v. 9, 2014). Mont. Apr. Point Sch. Dist., Wolf Jackson v. at 4 ¶ 13, Consent Decree 13, 2014). (D. Mont. Mar. No. CV-13-65-GF-BMM-RKS Id. Id. at 6 ¶ 5(a).

158 159 160 161 162 163 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 124 133 134 135 136 125 126 127 128 129 130 131 132 Id. at 286 n.23. Id. Minority Rights Act, Protecting Nat’l Comm’n on the Voting 1982–2005 55 Rights Act at Work, The Voting Voters: Minority Voters]. Protecting (2006) [hereinafter United States, 543 U.S. 999 S.C. v. Charleston Cnty., (2004). , supra note 117, at 55–56. Minority Voters Protecting Id. at 56. R. Alexander Acosta, Assistant Determination Letter from of Justice, to state of S.C. (Feb. 26, Att’y Gen., U.S. Dep’t 2004), available at http://www.justice.gov/crt/records/vot/ obj_letters/letters/SC/SC-2180.pdf. Sims, 377 U.S. 533 (1964). Reynolds v. Thorn 507 U.S. 146, 153–54 (quoting - Quilter, v. Voinovich Gingles, 478 U.S. 30, 46 n.11 (1986)). burg v. Profile of General Demo- of DP-1. Profile Table U.S. Census Bureau, Fayette graphic Characteristics: 2000, Geographic area: Georgia, available at http://censtats.census.gov/ County, data/GA/05013113.pdf. Supp. 2d at 1300. Fayette County, 950 F. Id. at 1300. Id. at 1300–01. Id. at 1312. Supp. 2d at 1316–18. Fayette County, 950 F. Supp. 2d 268, 273 , 316 F. Charleston Cnty. United States v. (D.S.C. 2003). Id. at 275. Id. at 278, 280, 285 n.20. Id. at 292. Id. at 294. , 670 F.3d 1133, 1136 (10th Wyo., 670 F.3d Cnty., Fremont Large v. 2012). Cir. Id. , Cnty. Fremont Remedial Plan at 25, Large v. on Order Wyo., No. 2:05-cv-00270-ABJ (D. Wyo. Aug. 10, 2010). on Id. at 31. The decision was affirmed on appeal (based which of the hybrid plan to conform to state law, the failure at did not allow for such hybrid plans). Large, 670 F.3d 1148–49. Montezuma-Cortez Sch. Dist. No. RE-1, 7 F. Cuthair v. Supp. 2d 1152, 1171 (D. Colo. 1998). Id. at 1154. Id. at 1154–55. Id. at 1155–61. , 950 Ga. Cnty., Fayette of NAACP v. Ga. State Conference Supp. 2d 1294, 1326 (N.D. Ga. 2013). F. , 580 F. Supp. 2d 584, 612 Supp. 2d 584, City of Euclid, 580 F. v. United States (N.D. Ohio 2008). Id.at 588. Id. at 588–89. Id. at 587. 2d 1176, 1231 Supp. Wyo., 709 F. Cnty., Fremont Large v. (D. Wyo. 2010). Id. at 1182. Id. at 1183. Id. at 1184. Id. at 1186–88. Id. at 1219–20. Id. at 1220. Id. at 1232.

115 116 117 118 119 120 121 122 123 104 105 106 107 108 109 110 111 112 113 114 95 96 97 98 99 100 101 102 103 83 84 85 86 87 88 89 90 91 92 93 94

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, 109th S. Comm. on the Judiciary Rights of the Property Mem- of Sen. Kennedy, Cong. 2 (2006) (opening statement S. Comm. on the Judiciary). ber, U.S. Dep’t of Health & Human Servs., Characteristics U.S. Dep’t Fiscal Recipients, of TANF and Financial Circumstances 2010: Appendix tbl.8 (2011), available at http://www. Year acf.hhs.gov/sites/default/files/ofa/appendix_fy2011_fi- nal_amend.pdf; Kelsey Farson Gray & Esa Eslami, U.S. Office of Policy of Agric. Food and Nutrition Serv., Dep’t Support, Characteristics of Supplemental Nutrition Assis- 2012, at 76 tbl.B.10 Households: Fiscal Year tance Program (2014), available at http://www.fns.usda.gov/sites/default/ files/2012Characteristics.pdf. Id. Id. at 153. Id. at 160. Id. at 177. Id. at 177–78. Id. at 177. Id. at 178. Id. at 234. Id. Id. at 178 (emphasis in original). Id. Perry, No. 5:11-cv- v. at 3–4, Perez. Scheduling Order Oct. 18, 2013). Tex. 00360-OLG-JES-XR (W.D. 42 U.S.C. § 1973gg-5(a)(6)(A). Federal public assistance by Section 7 include, inter alia: the covered programs formerly (SNAP, Supplemental Nutrition Assistance Program the Special Supplemental Nutri- the Food-Stamp Program); (WIC); the Infants and Children for Women, tion Program program Assistance for Needy Families (TANF) Temporary or (formerly the Aid to Families with Dependent Children and the State the Medicaid program; AFDC program); (SCHIP). State public Health Insurance Program Children’s The National Voter also covered. are assistance programs of Justice, Registration Act of 1993 (NVRA), U.S. Dep’t (last http://www.justice.gov/crt/about/vot/nvra/nvra_faq.php visited July 28, 2014). LULAC, 548 U.S. at 424. Id. at 423–24. Id. at 439–41. Id. at 441. Id.at 438–439. Id. at 440, 442. 2d 133, 138 (D.D.C. Supp. United States, 887 F. v. Texas 2012). Id. at 178. Id. at 152, 161–62, 177. Id. at 162. Id. at 163. Id. at 163–164. Id. at 164. Id. at 162. See id. at 197–247 (lengthy appendix detailing the court’s factual and legal findings). Id. at 197.

14 202 203 204 205 206 207 208 209 210 211 212 213 13 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 Id. United States’ and Defendant-Intervenors’ Joint Submission Findings of Fact and Conclusions of Concerning Proposed supra note 7, at 31. Law, Id. at 27. Id. at 32. , 863 F. Supp. , 863 F. Browning of Fla. v. Voters League of Women 2d 1155, 1159-65 (N.D. Fla. 2012). Id. at 1157–58. United States’ and Defendant-Intervenors’ Joint Submission Findings of Fact and Conclusions Concerning Proposed United States, No. 1:11-cv-01428 of Law at 26, Florida v. (D.D.C. May 3, 2012). supra note 2, at A7688-89. Decl. of Russell Weaver, Florida v. United States, at A7688, Florida v. Decl. of Russell Weaver No. 1:11-cv-01428 (D.D.C. April 10, 2012). Supp. 2d Cobb, 447 F. of Fla. v. Voters League of Women 1314, 1317 (S.D. Fla. 2006). Id. at 1316. Brief of Community Voter Registration Orgs. as Amici Curiae Brief of Community Voter U.S. Election in Support of Appellants at 19, Kobach v. Assistance Comm’n, Nos. 14-3062 and 14-3072 (10th Cir. June 3, 2014). League of United Latin Am. Citizens (LULAC) v. Perry, 548 League of United Latin Am. Citizens (LULAC) v. U.S. 399, 410 (2006). Id. at 423–24. Id. Id. at 427. Id. at 424. Rights of the Voting Provisions Renewing the Temporary Perry: Hearing Act: Legislative Options After LULAC v. Subcomm. on the Constitution, Civil Rights and the Before 573 F.3d 1143, 1145 (11th , Ga., 573 F.3d Randolph Cnty. Cook v. 2009). Cir. supra note 172. Letter, Randolph Cnty. at 1145–46. Cook, 573 F.3d supra note 172. Letter, Randolph Cnty. Id. Id. Id. Id. at 1026. , 523 U.S. 1118 (1998). Stabler of Thurston v. Cnty. Att’y Gen., J. Kim, Assistant Wan Determination Letter from Ga. (Sept. 12, Cnty, of Justice, to Randolph U.S. Dep’t 2006), available at http://www.justice.gov/crt/records/vot/ Randolph obj_letters/letters/GA/GA-2700.pdf [hereinafter Letter]. Cnty. Id. Id. Id. 1015, 1019 (8th Cir. , 129 F.3d of Thurston Cnty. Stabler v. 1997). Id. at 1020. Determination Letter from R. Alexander Acosta, Assistant R. Alexander Letter from Determination Justice, to City of Ville of Platte, La. Att’y Gen., U.S. Dep’t http://www.justice.gov/crt/ (June 4, 2004), available at records/vot/obj_letters/letters/LA/LA-2440.pdf.

9 10 11 12 5 6 7 8 2 3 4 CHAPTER 6 1 180 181 182 183 184 185 173 174 175 176 177 178 179 170 171 172 165 166 167 168 169 164

, 746 F. 3d at 1286. 3d , 746 F. 42 U.S.C. § 1973gg(b). Kobach, 2014 WL 1094957 at *13. U.S. Election Assistance Comm’n, Nos. 14-3062 Kobach v. June 3, 2014). and 14-3072 (10th Cir. Aff. in Support of Resistance to Motion to Dismiss at 1–2, Aff. in Support of Resistance to Motion to Dismiss Iowa Sec’y of State Matt Schul- Am. Civil Liberties Union v. tz, No. CVCV009311, 2012 WL 4054139 (Iowa Dist. Sept. 13, 2012), available at http://moritzlaw.osu.edu/electionlaw/ litigation/documents/PetitionersExhibitList.pdf. Bettis, supra note 48, at 1–2. Id. Stat. Ann. § 16-166(F); Kan. Stat. Ann. § Ariz. Rev. 21-2- 25-2309(l); Ala. Code § 31-13-28; Ga. Code Ann. § & Erik Opsal, Brennan Weiser R. 216(g)(1); see also Wendy , at 3 (2014), in 2014 for Justice, The State of Voting Ctr. available at http://www.brennancenter.org/analysis/state- voting-2014. 42 U.S.C. §§ 1973gg-4(a)(1), 1973gg-7(a)(2). This Postcard State by Using in Your See Register to Vote Form and Guide, http://www.eac.gov/assets/1/Documents/ (last Federal%20Voter%20Registration_6-25-14_ENG.pdf visited July 25, 2014). See ITCA, 133 S. Ct. 2247 (2013). Arizona v. Id.Plaintiffs also asserted in that litigation that the proof- violated Section 2 of the Voting of-citizenship requirement on appeal to the Rights Act, but that claim was not resolved Court. by the Supreme and was not addressed Ninth Circuit 2012). 3d 383, 404 n.30 (9th Cir. Arizona, 677 F. Gonzalez v. U.S. Election Assistance Comm’n, No. 13– Kobach v. 19, cv–4095–EFM–TJJ, 2014 WL 1094957 (D. Kan. Mar. 2014); See generally U.S. Election Assistance Comm’n, Memorandum of Decision Concerning State Requests to Instructions on the Include Additional Proof-of-Citizenship National Mail Registration Form 41–43 (2014), [hereinafter Decision] available at http://www. EAC Proof-of-Citizenship eac.gov/assets/1/Documents/20140117%20EAC%20 - Final%20Decision%20on%20Proof%20of%20Citizen ship%20Requests%20-%20FINAL.pdf.The EAC denied the state is not participating in but similar request, Georgia’s the lawsuit with Arizona and Kansas. Id. , No. 1:12-CV-22282 (S.D. Fla., (S.D. , No. 1:12-CV-22282 Detzner v. Compl., Arcia June 19, 2012). Id. at ¶ 26. 1273, 1276–77 3d of State, 746 F. Florida Secretary v. Arcia 2014). (11th Cir. U.S. Citizenship and Im- Id.See generally What is SAVE?, migration Services, http://www.uscis.gov/save/what-save/ 28, 2014). what-save (last visited July Arcia , No. Detzner Education Fund v. Compl., Mi Familia Vota (M.D. Fla. June 8, 2012). 8:12-CV-01294-JDW-MAP Education Fund v. of Dismissal, Mi Familia Vota Order (M.D. Fla. July 24, Detzner, No. 8:12-CV-01294-JDW-MAP 2013). Purge Vio - Brandon Larrabee, Appeals Court: Florida Voter 2, 2014, http://www. Apr. lated Federal Law, News-Press news-press.com/story/news/politics/2014/04/01/appeals- court-florida-voter-purge-violated-federal-law/7181283/. - National Commission on Vot Testimony, Rita Bettis, Written 22, 2014) (Apr. Missouri ing Rights, Hearing in Kansas City, (on file with the Lawyers’ Committee).

59 60 49 50 51 52 53 54 55 56 57 58 40 41 42 43 44 45 46 47 48

note 2, at A7688. , 520 U.S. 273, 291 (1997).

Determination Letter from Loretta King, Acting Assistant Loretta See Determination Letter from of Justice, to State of Georgia (May Att’y Gen., U.S. Dep’t 29, 2009), available at http://www.justice.gov/crt/records/ King vot/obj_letters/letters/GA/l_090529.php [hereinafter Determination Letter]. Handel, No. 1:08-cv-3172 Compl. at ¶¶ 33–40, Morales v. Morales Complaint]. (N.D. Ga. October 9, 2008) [hereinafter Handel, No. 1:08–CV–3172, 2008 WL See Morales v. 9401054 (N.D. Ga. Oct. 27, 2008). Morales Complaint, supra note 32, at ¶¶ 49–63. Morales, 2008 WL 9401054 at *8–9. supra note 31. King Determination Letter, Id. Id. Kemp, Lawyers’ Comm. for Civil Rights See Morales v. - http://www.lawyerscommittee.org/projects/vot Under Law, ing_rights/page?id=0021 (last visited July 28, 2014). Arizona v. Inter Tribal Council of Ariz., 133 S. Ct. 2247 Inter Tribal Arizona v. (2013). No. 113-011 Registration, Op. Ariz. Att’y Gen., See Voter (R13-016) (Oct. 7, 2013), available at https://www.azag. gov/sites/default/files/sites/all/docs/Opinions/2013/I13-011. of Kobach, Sec’y of State, State Kris W. pdf; Letter from Election Assistance Acting Exec. Dir., Kan., to Alice Miller, Comm’n (Aug. 2, 2013), available at http://www.eac.gov/ assets/1/Documents/KWK%20to%20EAC%20%20(8%20 2%2013)-with-Kansas-to-Counties-OCR.pdf. of Home- of Immigration Statistics: 2013, Dep’t Yearbook - http://www.dhs.gov/publication/yearbook-im land Security, migration-statistics-2013-naturalizations (click to download tbl.21). Id. Id. Allain, 674 F. Operation Push v. See Miss. State Chapter, 400 Supp. 1245, 1251-52 (N.D. Miss. 1987), aff’d 932 F.2d 1991). (5th Cir. constitutional claims Id. at 1268. Plaintiffs also brought law based on the clear discriminatory intent of the 1892 but the district judge found it and subsequent revisions, those claims in light of his statutory unnecessary to address ruling. Id. See 42 U.S.C. §§ 1973gg-3 to -5. Fordice v. Young Acting Assis- Isabelle Katz Pinzler, Determination Letter from of Justice, to State of Mississippi tant Att’y Gen., U.S. Dep’t (Sept. 22, 1997), available at http://www.justice.gov/crt/ records/vot/obj_letters/letters/MS/MS-2650.pdf. Id. Id. supra Decl. of Russell Weaver, Rights Litigation, Lawyers’ Comm. for Civil Rights Voting - http://www.lawyerscommittee.org/projects/vot Under Law, visited July 28, 2014). ing_rights/page?id=0025 (last of Justice, http://www. Litigation, U.S. Dep’t Section Voting (last visited justice.gov/crt/about/vot/litigation/caselist.php July 28, 2014). to the Dēmos, Testimony Lisa J. Danetz, Senior Counsel, Compliance Rights: Increasing U.S. Commission on Civil (April 19, 2013), available at with Section 7 of the NVRA http://www.demos.org/sites/default/files/publications/ Final%20USCCR%20Testimony.pdf.

31 32 33 34 35 36 37 38 39 28 29 30 21 22 23 24 25 26 27 15 16 17 18 19 20

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at ¶ 31. 2 (2013) [hereinafter in the United States 2 (2013) [hereinafter chisement Laws Democracy Imprisoned]. National Commission on Voting Rights, Minnesota and National Commission on Voting Wisconsin Hearing 113 (Feb. 25, 2014) (transcript on file with the Lawyers’ Committee). Rights, Miami, Florida Hear National Commission on Voting 31, 2014) (transcript on file with the Lawyers’ ing 34 (Mar. Committee). Supp. 2d United States, 898 F. v. See, e.g., South Carolina Supp. 2d 113, , 888 F. Holder v. 30, 32 (D.D.C. 2012); Texas 115 (D.D.C. 2012). Democracy Imprisoned, supra note 79, at 5. Id. Rights, Richmond, Virginia National Commission on Voting Law- 29, 2014) (transcript on file with the Hearing 27 (Apr. yers’ Committee). Const. § 145. Ky. Advisory Comm. to the U.S. Comm’n on Civil Rights, Ky. Have Completed all Rights in Kentucky: Felons Who Voting 22 Have the Right to Vote of Their Sentences Should Terms Rights in Kentucky] available at Voting (2009), [hereinafter http://www.usccr.gov/pubs/KYVotingRightsReport.pdf. Sentenc- Christopher Uggen, Sarah Shannon & Jeff Manza, State-Level Estimates of Felon Disenfranchise- ing Project, available ment in the United States, 2010, at 16 tbl.3 (2012), at http://www.sentencingproject.org/doc/publications/ fd_State_Level_Estimates_of_Felon_Disen_2010.pdf. supra note 96, at 22. Rights in Kentucky, Voting Rights Thawing, Opposition to Felon Voting Phillip M. Bailey, Kentucky Lawmaker Says, WFPL News (Oct. 21, 2013), http://wfpl.org/post/opposition-felon-voting-rights-thawing- kentucky-lawmaker-says. Bettis, supra note 48, at 2. National Commission Testimony, Thomas H. Castelli, Written see 3 (May 8, Rights, Hearing in Nashville, Tennes on Voting 2014) (on file with the Lawyers’ Committee). Id. Rights, Cali- See generally National Commission on Voting fornia State Hearing 50–53 (Jan. 30, 2014) (transcript on file with the Lawyers’ Committee). Jeff Manza & Christopher Uggen, Locked Out: See generally Jeff Manza & Christopher and American Democracy (2008). Felon Disenfranchisement (S.D. , No. 1:00-cv-03542-JLK Bush Compl., Johnson v. Fla. Sept. 21, 2000). Id. Id. at ¶ 44. 2d 1333, 1338–39 (S.D. Fla. Supp. Bush, 214 F. Johnson v. 2002). 1287 Governor of State of Florida, 353 F.3d Johnson v. 2003). (11th Cir. 1214, Governor of State of Florida, 405 F.3d Johnson v. v. Richardson 2005) (en banc) (citing 1228 (11th Cir. , 418 U.S. 24, 48–52 (1974)). Ramirez Democracy Imprisoned, supra note 79, at 6. 2010). 989 (9th Cir. , 590 F.3d Gregoire Farrakhan v. Id. 2010) (en 990, 993 (9th Cir. , 623 F.3d Gregoire Farrakhan v. banc) (emphasis omitted). , No. 99-2285, 2000 WL 203984 (4th Cir. Gilmore v. Howard Feb. 23, 2000); see also Anita S. Earls et al., RenewtheVRA. Rights in Virginia: 1982-2006, at 23–24 (2006). org, Voting

104 105 106 92 93 94 95 96 97 98 99 100 101 102 103 80 81 82 83 84 85 86 87 88 89 90 91 - supra note 58, at 42–43. supra note 58, at 28–31,

120 (2012). , 418 U.S. 24 (1974). Ramirez v. Richardson Id. at 54. Underwood, 471 U.S. 222 (1985). Hunter v. Am. Civil Liberties Union et al., Democracy Imprisoned: A and Impact of Felony Disenfran- Review of the Prevalence Wang, supra note 73, at 115. (“The huge number of people Wang, with felony convictions has everything to do with the change to criminal law in the 1980s and 1990s that in approach felonies. And the number of crimes considered increased in the 1990s, the national even though crime rates dropped at an unusually high rate because of prison population grew penalties for drug the so-called war on drugs that increased crimes.These new sentencing rules for drug offenses also effect on minority communities, par had a disproportionate convicted ticularly African Americans. African Americans are of drug crimes at a much higher rate than white Americans, higher rates of despite the fact that white Americans report drug use.The disparities in the criminal justice system for the African Americans and whites can be seen throughout - conviction, sentencing, and incarcera arrest, from process tion.”). 42 U.S.C. § 1973gg-6(e). in Florida Irregularities See U.S. Civil Rights Comm’n, Voting Election ch. 5 (2001). During the 2000 Presidential Sup- The Politics of Voter Wang, Andrea Id.; see also Tova Defending and Expanding Americans’ Right to pression: Vote Purges 1 for Justice, Voter Ctr. Brennan Myrna Pérez, (2008), available at http://www.brennancenter.org/sites/ Florida default/files/legacy/publications/Voter.Purges.f.pdf; (July 10, List, USA Today Scraps Flawed Felon Voting 2004), http://usatoday30.usatoday.com/news/nation/2004- 07-10-felons-vote-fla_x.htm; Laleh Ispahani & Nick Williams, Am. Civil Liberties Union et al., Purged (2004), available at - https://www.aclu.org/files/FilesPDFs/purged%20-voting_re port.pdf. EAC Proof-of-Citizenship Decision, EAC Proof-of-Citizenship Acting Assis- Isabelle Katz Pinzler, Determination Letter from (Jan. of Justice, to State of Tex. tant Att’y Gen., U.S. Dep’t 16, 1996), available at http://www.justice.gov/crt/records/ vot/obj_letters/state_letters.php?state=tx. Id. Id. 42 U.S.C. § 1973gg-6(b)-(d). Brief for Election Administrators as Amici Curiae in Support Brief for Election Administrators , 133 S.Ct. 2247 ITCA of Respondents, at 7, Arizona v. - (2013), available at http://moritzlaw.osu.edu/electionlaw/liti gation/documents/AmicusBriefofElectionAdministrators.pdf. Hispanic Caucus Institute, Jessica Gonzalez, Congressional 5 Barrier to the Latino Vote? Laws: A New State Voting (2012). EAC Proof-of-Citizenship Decision, Decision, EAC Proof-of-Citizenship 33–35. for Justice, Survey Ctr. Brennan Kristen Baker & Nelly Ward, 1 Voting by Non-Citizens on of Georgia Elections Officials (2009), available at http://www.brennancenter.org/sites/ default/files/legacy/blog/GA.survey.e.officials.doc. After Ruling, Alabama Joins 2 States in Mov Joins 2 States in- After Ruling, Alabama Erik Eckholm, 21, 2014), http:// Times (Mar. Rules, N.Y. ing to Alter Voting www.nytimes.com/2014/03/22/us/after-ruling-alabama- joins-2-states-in-moving-to-alter-voting-rules.html.

76 77 78 79 75 71 72 73 74 66 67 68 69 70 64 65 62 63 61

- - - - n cases of cases seen SSN Key Findings: The Misleading Myth [n]o state considering or passing restrictive voter identification laws has documented an ac- with voter fraud.In litigation over tual problem the new voter identification laws Indiana, Georgia and Pennsylvania, election of in Wisconsin, ficials testified they have never voter impersonation at the polls. Indiana and had they that court in stipulated Pennsylvania instances of voter fraud. experienced zero When federal authorities challenged voter identi fication laws in SouthTexas, Carolina and neither imperson- voter of evidence any provided state ation or any other type of fraud that could be de photo identi voters to present by requiring terred fication at the polls. Lorraine C. Minnite, (Aug. 12, 2012), http://votingrights.news21.com/article/ (Aug. 12, 2012), election-fraud/. According to Lorraine C. Minnite, According The Politics of Voter The Politics of Voter Vote, See Lorraine C. Minnite, Project Effort, In 5-Year Fraud (2007); Eric Lipton & Ian Urbina, 12, 2007), Times (Apr. Fraud, N.Y. Scant Evidence of Voter www.nytimes.com/2007/04/12/washington/12fraud. html?pagewanted=all&_r=0. over major political controversy was a In early 2007, there of attorneys.Asthe firings of several U.S. a larger picture of Justice emerged, the politicization of the Department Division, the focal point was the especially the Civil Rights U.S. attorneysresignations of nine and firing and forced for for sudden removal, more the consideration of three As it turned out, five of those political reasons. apparent targeted because they had not pursued alleged twelve were political voter fraud accusations with sufficient vigor for the operatives in the Bush administration. See Lipton & Urbina, supra note 113; see also Dan Eggen & Amy Goldstein, Dismissals, Wash. Fraud Complaints by GOP Drove Voter Post (May 14, 2008) http://www.washingtonpost.com/wp- dyn/content/article/2007/05/13/AR2007051301106.html; , N.Y. Eric Lipton, Panel Asks Official about Politics in Hiring Times (June 6, 2007) http://www.nytimes.com/2007/06/06/ washington/06justice.html; Frank Morris, Attorneys Scandal , NPR (May 3, 2007) http:// May be Tied to Missouri Voting www.npr.org/templates/story/story.php?storyId=9981606 of Voter Fraud in American Elections (2014), available at of Voter http://www.scholarsstrategynetwork.org/sites/default/files/ ssn_key_findings_minnite_on_the_myth_of_voter_fraud.pdf; Pennsylvania, No. 330 MD 12, 2012 see also Applewhite v. Ct. Aug. 15, 2012), vacated, WL 3332376 (Pa. Commw. to 2012 WL 4497211 (Pa. 617 Pa. 563 (2012), remanded Ct. Oct. 2, 2012), subsequent determination in Commw. Ct. Jan. 17, 2014) (“The 2014 WL 184988 (Pa. Commw. of any incidents of any in-person not aware parties are personal voter fraud in Pennsylvania and do not have direct Nick knowledge of in[-]person voter fraud elsewhere”); Begin As Set To ID Law Trial Wing, Pennsylvania Voter Fraud, Voter Of In-Person State Concedes It Has No Proof Huffington Post (July 24, 2012) http://www.huffingtonpost. com/2012/07/24/pennsylvania-voter-id-trial_n_1697980. html. In North Carolina,

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son (with certain limited exceptions) present a government- son (with certain limited exceptions) present counted. be will that ballot a cast to order in ID photo issued A subsequent analysis of the initiative vote by the Lawyers’ was Committee showed that voting on the ballot measure highly racially polarized—over 75% of non-white voters op- posed the initiative while only about 17% of white voters op- Lawyers’ Comm. for Civil posed it. See Russell C. Weaver, Pulling Back the Curtain: An Analysis of Rights Under Law, Ugly History of Voter Shows that Mississippi’s Racial Voting Continues (2012), available at http://www. Suppression lawyerscommittee.org/admin/site/documents/files/Pulling- Back-the-Curtain.pdf. Shelby County: One for Justice, Ctr. Lopez, Brennan Tomas Later 3 (2014), available at http://www.brennancenter. Year org/sites/default/files/analysis/Shelby_County_One_ see also Kara Brandeisky & Mike Tigas, Year_Later.pdf; Court Ruled on Happened Since Supreme Everything That’s 1, 2013), http://www. Publica (Nov. Rights Act, Pro Voting propublica.org/article/voting-rights-by-state-map. Indeed, incidents of fraud perpetrated by voters of any kind Lorraine C. Minnite, The Myth of Voter See, e.g., rare. are The for Justice, Ctr. Fraud (2010); Justin Levitt, Brennan Fraud (2007); Natasha Khan & Corbin About Voter Truth Fraud Database of U.S. Voter Carson, Comprehensive Uncovers No Evidence That Photo ID Is Needed, News 21 laws/. of State Moves to Secretary Martha Bergmark, Mississippi’s ID Law, Huffington Post (July 10, 2013), www. Voter Enforce huffingtonpost.com/martha-bergmark/voting-rights-act- shelby-county-v-holder_b_3575216.html. Mississippians in 2011 voted in favor of an initiative to amend the State that all voters seeking to vote in per Constitution to require - 42 U.S.C. § 15483(b)(2)(A). Acceptable identifying docu and valid photo identification or a ments include current utility bill, bank statement, government copy of a current check, paycheck, or other government document that Id. of the voter. shows the name and address Act Out, States Rights WithSee Sarah Childress, Voting (June 26, 2013), http:// ID Laws, PBS Frontline Push Voter www.pbs.org/wgbh/pages/frontline/government-elections- politics/with-voting-rights-act-out-states-push-voter-id- Louisiana’s Voter ID Law Voter Louisiana’s Bridges, see Tyler For Louisiana, Court Decision, The 1997 Eases Effects of Supreme from Lens (June 27, 2013), http://thelensnola.org/2013/06/27/ louisianas-voter-id-law-from-1997-eases-effects-of- Voter Underhill, see also Wendy supreme-court-decision/; Voter ID Laws, National | Identification Requirements (June 25, 2014), http:// of State Legislatures Conference Id. www.ncsl.org/research/elections-and-campaigns/voter- does not have identification, aspx#Details (“If the applicant the commis- to that effect before s/he shall sign an affidavit further identification shall provide sioners, and the applicant certificate, giving his registration his current by presenting - other information stated in the pre date of birth or providing the commissioners.”). For by that is requested cinct register Laws Roundup, Brennan Virginia, see Election 2012: Voting for Justice (Oct. 11, 2012), http://www.brennancenter. Ctr. (“Virginia org/analysis/election-2012-voting-laws-roundup an ID to vote, including various forms passed a law requiring of photo. Id.This law eliminated an option to sign an affidavit for to confirm identity when voting at the polls or applying an absentee ballot in person.”).

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- - - - Tillis: Fraud ‘Not the Primary Reason’ for Voter Tillis: Voter Fraud ‘Not the Primary Reason’ for right to protect ourselves against the possibility of against the possibility ourselves right to protect voter fraud,” he saId. The state Respondents’ brief was most emphatic most was brief Respondents’ state The in its advocacy of a state interest to confi- restore dence in elections. Citing Gallup and Rasmussen polls attesting to the widespread lack of of elections, integrity the have in Americans dence confi- subsection brief contained an entire the state’s titled, “The need to preserve public confidence in elections justifiesVoter the ID Because Law.” op- in re portunities for abuse exist, this state interest argued, brief the compelling, is confidence storing whether particular instances of fraud “[r]egardless well documented.” are This is not about voter intimidation. It is about This is not about voter intimidation. voter confidence. It is about the right of a legally and to voter to have her ballot counted registered exactly the same weight expect that ballot to have ballot. voter’s as every other legally registered have her vote in this is the right not to Inherent who would someone out by cancelled or diluted act to defraud the system. Requiring government issued photo identification at the polls is a way to this. ensure of voter fraud, but that’s some evidence is “There for doing this,” Tillisnot the primary reason told Melvin. “We call this restoring confidence in gov- ernment,” a lot of people who Tillis are saId. “There just concernedthe potential risk of fraud.” are with He added a voter ID law “would make nearly comfortable of the population more three-quarters confident when they go to the polls.” and more Voter fraud drives honest citizens out of the demo Voter distrust of our govern and breeds cratic process who fear their legitimate votes will be ment. Voters outweighed by fraudulent ones will feel disenfran chised. Laura Leslie, Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). In v. Purcell , Purcell , Assoc. Press (Jan. 23, Legal Battle, Assoc. Press ID Laws Spur Voting 2008) http://usatoday30.usatoday.com/news/nation/2008- the Indiana before 01-23-voting-court_N.htm.Testifying he said Committee on House Administration, Rokita for the of State Todd of Indiana Secretary Testimony Committee on House Administration, Indiana Sec’y of State, Elections Division (Feb. 9, 2005), www.in.gov/sos/3183. House Speaker Thom Tillis a htm. North Carolina offered voter ID law: similar rationale for North Carolina’s , WRAL (updated Mar. 17, 2013), www.wral.com/ ID Push, WRAL (updated Mar. tillis-actual-voter-fraud-not-the-primary-reason-for-voter-id- Court has expressed push-/12231514/. The U.S. Supreme similar reasoning:

- - - - - North Carolina Will of North Carolina Determine the Future

is intended to encourage “faith in the election and in the integrity of it. Identify theft process, in America.” problem is the fastest-growing - have been no prosecu He acknowledges there a still have we “But voter. a impersonating for tions personation fraud exists -- and I will say that as of State, it Secretary eight years of being Indiana’s elec every allegations made we have exist, does hap- in Indiana, it’s happening tion . . . [b]ut if it’s to California. . . . New York from pening everywhere Now these gentleman and others say ‘well pro one case, you can’t produce you can’t ex it doesn’t duce one conviction, therefore evidence was used. Well ist,’ the word a lot of evidence . . . . not true, there’s that’s to pros several cases that I presented are There take up the case, not because ecutors who didn’t of a lack of evidence, but think about the kind of fraud it is, think about the kind of crime it is . . . . something that happens in an instant and than It’s gone. . . . it’s Whether or not you agree that in-person voter im Whether or not you agree [t]he state presented no tangible evidence of voter no tangible [t]he state presented is no “There fraud to justify the new restrictions. with these enhanced evidence we had problems Dan Blue, the forms of participation,” Senator Democratic minority leader, testified. (Ironically, voting, absentee the law does nothing to restrict the potential for fraud is greatest.) where It’ Ari Berman, prosecute, but that doesn’t mean it doesn’t exist . . . . mean it doesn’t but that doesn’t prosecute, Fraud ‘Happening Every- GOP Rep: Voter Ryan J. Reilly, Cases, Talking Take Wouldn’t But Prosecutors where,’ Points Memo (Sept. 13, 2011) http://talkingpointsmemo. - com/muckraker/gop-rep-voter-fraud-happening-every where-but-prosecutors-wouldn-t-take-cases-video.Rokita said that the Indiana voter ID law Crawford v. Marion County Election Bd., 553 U.S. 181 v. Crawford (2008). at 2014 WL 1775432, , No. 11-CV-01128, Walker Frank v. 29, 2014). *6 (E.D. Wisc. Apr. a former Indiana Secretary Rokita (R-IN), Said Rep. Todd of State: , The Nation (July 10, 2014) http:// Rights Act, The Nation (July 10, 2014) the Voting www.thenation.com/blog/180608/north-carolina-will- Release, see also Press determine-future-voting-rights-act#; Answer to Lawsuit Carolina’s North Advancement Project, Vote (Oct. 21, to Offers No Justification for Making It Harder 2013), http://www.advancementproject.org/news/entry/ north-carolinas-answer-to-lawsuit-offers-no-justification-for- making-it-har#sthash.hF5kCChE.dpuf.

to hard very s thekindofcases,fraud,that’s 116 117 118

------.in.gov/ 1. Display your photo your 1. Display 2. Display your name, and the name must 2. Display your name, . . . record conform to your voter registration date and either 3. Display an expiration af- sometime expired have or current be General Election . . . ter the date of the last the State of In 4. Be issued by U.S. governmentdiana or the license, Indiana pho In most cases, an Indiana driver sufficient. is Passport U.S. or ID Military card, ID to school may an Indiana State A student ID from of the 4 criteria speci only be used if it meets all fied above. A student ID from a private institution may not be used for voting purposes. Exemptions do exist for the indigent, those with objection to being photographed, and a religious those living in state-licensed facilities that serve wish polling place. If you are as their precinct’s ing to claim an exemption from the photo ID ing to claim an exemption from based on indigence or a religious requirement objection, you may do so in one of two ways: and cast a 1. Go the polls on Election Day, ballot. Withinprovisional 10 days of the elec tion, visit the county firm election that office and af- an exemption county elec absentee-in-person at the 2. Vote appliestion office to you. before there, affirm that Election an exemption applies to you. Day, and while facil- state-licensed a at resident a are you If ity that serves as your polling place, you may claim the exemption at the polls on Election Day. photo ID unable or unwilling to present If you are ballot. you may cast a provisional on Election Day, ballot, you have until Upon casting a provisional noon 10 days after the election to follow up with the photo ID and either provide County Election Board you. to applies exemptions law’s the of one affirm or Also, if you qualify to vote absentee-by-mail or ab and you chose to vote sentee-by-traveling board, photo ID. to present not required as such, you are Exemptions, Indiana Election Division, http://www sos/elections/2624.htm (last visited July 30, 2014). In , the Court asserted that “the evidence in the Crawford us with the number of registered does not provide record , 553 U.S. voters without photo identi¬fication[.]” Crawford determinations, the district court’s at 200. Drawing from on voters was Court found that the burden the Supreme , 504 U.S. Takushi v. “limited[.]” Id. at 203 (quoting Burdick 428, 439). - www.in.gov/sos/elec Indiana Election Div., Photo ID Law, tions/2401.htm (last visited July 30, 2014).The law provides certain exemptions:

Vote Fraud in the Fraud Vote note 120, at 3.

e & Nathaniel Persily, e & Nathaniel Persily, photo ID must meet 4 criteria to be ac- Your ceptable for voting purposes. It Must: Public Law 109-2005 requires Indiana residents Indiana residents Public Law 109-2005 requires government-issueda be- ID photo present to casting a ballot at the polls on Election Day. fore Stephen Ansolabeher - & Adam Skaggs, Bren Weiser Wendy Vishal Agraharkar, ID Laws: What the for Justice, The Cost of Voter nan Ctr. Courts Say 3 (2011), available at http://www.brennancenter. org/sites/default/files/legacy/Democracy/Voter%20ID%20 Cost%20Memo%20FINAL.pdf. Supp. 2d 1333, 1377–80. Common Cause III, 504 F. , 553 U.S. 181. Crawford Id. website: the Indiana Election Division’s From Citizens Without, supra Proof in Support of Shaila Dewan, In Georgia, Thousands March - Times (Aug. 7, 2005) http://www.ny Rights, N.Y. Voting Ellen times.com/2005/08/07/national/07march.html?_r=0; L.A. Times ID Bill Into Law, Signs Voter Georgia Gov. Berry, 23, 2005) http://articles.latimes.com/2005/apr/23/na- (Apr. tion/na-voterid23. Ga. Code Ann. § 21-2-417. Supp. 2d 1326, Billups, 406 F. Common Cause of Ga. v. 1376 (N.D. Ga. 2005). The Disproportionate et al., The Disproportionate See, e.g., Matt A. Barreto on the Electorate Requirements ID Impact of Indiana Voter Working Inst. for the Study of Race and Ethnicity, (Wash. 2007), available at http://depts.washington.edu/ Paper, et A. Barreto Matt uwiser/documents/Indiana_voter.pdf; and the Disenfranchisement of ID Requirements al., Voter (Sept. 1, 2007) (prepared Latino, Black and Asian Voters at the Am. Political Science Ass’n Annual for presentation available at http://faculty.washington.edu/ Conference), for Ctr. Brennan mbarreto/research/Voter_ID_APSA.pdf; Justice, Citizens Without A Survey of Americans’ Proof: of Citizenship and Photo Possession of Documentary Proof Citizens Without], Identification (2006) [hereinafter Proof available at http://www.brennancenter.org/sites/default/ files/legacy/d/download_file_39242.pdf; John Pawasarat, Institute, of Wisc.-Milwaukee Employment and Training Univ. Age Population in The Driver License Status of the Voting Wisconsin (2005), available at https://www4.uwm.edu/eti/ barriers/DriversLicense.pdf. , 553 U.S. at 197 (while “Indiana’s interest in in interest , 553 U.S. at 197 (while “Indiana’s Crawford integrity and legitimacy public confidence ‘in the protecting to the government’ . . . .is closely related of representative voter fraud, public confidence in preventing interest State’s [also] has indepen- process in the integrity of the electoral - dent significance, because it encourages citizen participa (citation omitted). tion in the democratic process”) Eye of the Beholder: The Role of Public Opinion in the Chal- Eye of the Beholder: The Role 4–5 (Columbia Identification Requirements lenge to Voter Paper Grp., Theory Working Law Sch. Pub. Law & Legal - available at http://www.brennan Paper No. 08-170, 2008), center.org/sites/default/files/legacy/Democracy/Persily%20 (citations omitted). Ansolabehere%20attitudes%20study.pdf

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at 144 (internal citations omitted). at *14–*17. implementation of a voter identification requirement for requirement of a voter identification implementation election, that court is obliged to purposes of the upcoming (emphasis added). injunction.”) enter a preliminary Id. at 138. hearing, the Commis- Id. at 139–40. At the NCVR Texas the hours it can take testimony regarding direct sion heard See some voters to get to the Department of Public Safety. of Rogene Gee Calvert, Dir., Rogene Gee Calvert, Testimony Asian American Redistricting Initiative 122, National Tex. Regional Rights, Houston, Texas Commission on Voting 5, 2014) (transcript on file with the Lawyers’ Hearing (Apr. Committee). Id. Apr. 2013 SBOE-DMV ID of Elections, Apr. N.C. State Board - 17, 2013), www.democracy-nc.org/down Analysis (Apr. loads/SBOE-DMVMatchMemoApril2013.pdf. , No. 13- North Carolina Compl. at 15–16, United States v. (M.D.N.C. Sept. 30, 2013). CV-861 & Kevin M. Quinn, Can Cobb, D. James Greiner Rachael V. in a Race-Neutral Manner? ID Laws Be Administered Voter the City of Boston in 2008, 7 Q.J. Pol. Sci Evidence from 1, 3 (2010); Lonna R. Atkeson et al., A New Barrier to Par Identification Application of Voter ticipation: Heterogeneous Policies, 29 Electoral Stud. 66, 66–73 (2010). Id. Rights, Pennsylvania State National Commission on Voting Hearing 125 (Feb. 6, 2014) (transcript on file with the Law- yers’ Committee). Supp. 2d at 115. Holder, 888 F. v. Texas Id. at 124–25. Id. at 144. Assistant Att’y Thomas E. Perez, Determination Letter from 12, 2012), (Mar. of Justice to State of Texas Gen., Dep’t - available at http://www.justice.gov/crt/records/vot/obj_let ters/letters/TX/l_120312.pdf. Supp. 2d at 144. Holder, 888 F. v. Texas Id. Applewhite, 2014 WL 184988 at *26–27. Id. at *11–*12. Id. of the State Conference Carolina In the first case, the North challenge por and churches NAACP and other individuals Rights to the federal Voting tions of House Bill 589 pursuant pursuant to the Fourteenth Act, 42 U.S.C. § 1973, and to the Constitution. N.C. State and Fifteenth Amendments , No. 1:13-CV-658 McCrory of the NAACP v. Conference case, the League of Women (M.D.N.C. 2014).In the second and other individuals and groups North Carolina of Voters Rights Act, 42 raise similar challenges under the Voting U.S.C. § 1973 and § 1973a, and under the Fourteenth North of N.C. v. Voters Amendment. League of Women in the Finally, (M.D.N.C. 2014). , No. 1:13-CV-660 Carolina the Department of Justice also raises similar case, third Rights Act, 42 U.S.C. challenges pursuant to the Voting against asserted cases, the claims are § 1973. In all three of the the members or director the State of North Carolina, Governor of Elections, and/or North Carolina State Board , No. 1:13-CV-861 North Carolina United States v. McCrory. of the N.C. State Conference (M.D.N.C. 2014). See Order, (M.D.N.C. 2014), , No. 1:13-CV-658 McCrory NAACP v. available at http://www.advancementproject.org/page/-/ esjt/files/resources/NC%20Order.pdf.

168 169 170 157 158 159 160 161 162 163 164 165 166 167 153 154 155 156

Id. at 570 (“[I]f the Commonwealth Court is not still con- will be no voter judgment that there vinced in its predictive disenfranchisement arising out of the Commonwealth’s at 569 (“While there is a debate over the number of Id. at 569 (“While there affected voters, given the substantial overlap between voter database, ID driver/cardholder existing and PennDOT’s rolls understood that a minority of the population is it is readily is little dis- affected by the access issue. Nevertheless, there with Appellants’ observation that the population agreement involved includes members of some of the most vulnerable disabled members of segments of our society (the elderly, and the financially disadvantaged).”). our community, Applewhite v. Commonw. of Pennsylvania, 617 Pa. 563 of Commonw. Applewhite v. (2012). for good reason—has Id. at 567 (“PennDOT—apparently to allow such liberal access. Instead, the Depart- refused ment continues to vet applicants for Section 1510(b) cards that Commonwealth an identification process through one.”). officials appear to acknowledge is a rigorous , 203 S.W.3d 201, 221–22 (Mo. 2006). State, 203 S.W.3d v. Weinschenk Martin, No. Injunction at 3, Kohls v. Preliminary on Order to the According May 23, 2014). (Ark. Cir. 60CV-14-1495 ACLU of Arkansas, “as many as 25% of African-Americans to in the state lack government issued photo ID, compared - ID Laws Disenfran 8% of their white counterparts.” Voter Am. Civil Liberties Union of chise Eligible, Longtime Votes, Ark. (2013), www.acluarkansas.org/content/voter-id-bill-in- arkansas-house#.U9fdIPldVp6. Id. at 10. Under State See Joshua A. Douglas, The Right to Vote 89, 91, 101–05 (2014). L. Rev. Constitutions, 67 Vand. Id. at 23. Id. at 24–38. Id. at 33. Id. at 8. Id. at 8–10. Nat’l Comm’n on Voting Testimony, Written Karyn L. Rotker, 2014) Rights, Hearing in Minneapolis, Minnesota 9 (Feb. 25, Rates of Possession of Accepted (citing Matt A. Barreto, in the Subgroups Photo Identification Among Different Wisconsin, County, Population, Milwaukee Eligible Voter Frank Expert Report Submitted on Behalf of the Plaintiffs in , No. 11-CV-01128, Walker at 18–19, 34, Frank v. Walker v. 23, 2012), available at https:// 2014 WL 1775432 (Apr. www.aclu.org/files/assets/062-10-exhibitjexpertreport.pdf). Veasey v. Perry, v. Veasey on Motions to Dismiss at *14–*15, Order July 2, 2014 WL 3002413 (S.D. Tex. No. 2:13-CV-193, 2014). at 2014 WL 1775432 , No. 11-CV-01128, Walker Frank v. *3, *18, *33 (E.D. Wisc. 2014). Id. at 200. Id. at 201. Id. Id. at 204. 2d at 124, vacated and Supp. Holder, 888 F. v. Texas , 133 S. Ct. 2886 (2013). remanded Perry, No. v. at 1, Veasey Defendants’ Motion to Dismiss June 26, (S.D. Tex. 2:13–CV–193, 2013 WL 6046807 its Mo- throughout repeatedly cited Crawford 2013). Texas tion to Dismiss. , 504 U.S. at 203 (quoting Burdick , 553 U.S. at Crawford 439).

152 151 149 150 147 148 145 146 139 140 141 142 143 144 137 138 131 132 133 134 135 136 130 Waiting in Line Waiting Charles Stewart III & Stephen Ansolabehere, Voting & Mass. Inst. of Tech. 11 (Cal. Inst. of Tech. to Vote Paper No. 114, 2013), available at Working Project, Tech. http://vote.caltech.edu/sites/default/files/WP%20114.pdf. Id. at 1, 11–12. & Daniel A. Smith, Advancement Michael C. Herron Congestion at the Polls: A Study of Florida Project, in the 2012 General Election Executive Sum- Precincts Obama for America v. Husted, 2014 WL 2611316 at *4. Obama for America v. Husted Complaint, supra note 196, at ¶ 40. 2016-06, (Feb. Jon Husted, Ohio Sec’y of State, Directive 25, 2014), available at http://www.sos.state.oh.us/sos/ upload/elections/directives/2014/Dir2014-06.pdf. See Husted Complaint, supra note 196. Id. at ¶ 69. & Gill, supra note See, e.g., Brill, supra note 195; Weaver 193. in Ohio: Fight Over Poll Hours Isn’t Rowland, Voting Darrel Just Political, Columbus Dispatch (Aug. 19, 2012), http:// www.dispatch.com/content/stories/local/2012/08/19/fight- over-poll-hours-isnt-just-political.html. Signs Early- Scott Walker Jason Stein & Don Walker, Hours, Milwaukee Extends Voting Bill; Partial Veto Voting 27, 2014), http://www.jsonline.com/news/ J.-Sent. (Mar. statepolitics/scott-walker-signs-asbestos-lawsuit-bill- b99234687z1-252672541.html. Michael Herron & Daniel A. Smith, Race, & Daniel Michael Herron See generally Act in Information Verification Shelby County and the Voter 12, 2014), http:// , Dartmouth College (Feb. North Carolina - electionsmith.wordpress.com/2014/02/11/late-night-exclu sive-latest-herron-smith-race-shelby-county-and-the-voter- information-verification-act-in-north-carolina/. Lawyers’ Committee for & Sonia Gill, Russell Weaver Patterns by Race in Early Voting Civil Rights Under Law, available at http://www. Ohio 10 (2012), Cuyahoga County, - lawyerscommittee.org/admin/site/documents/files/EarlyVot ing_Cuyahoga_Report.pdf. with the Lawyers’ Committee for Statistical Analysis on file Civil Rights Under Law. of Elections, 2008 Early In- Bd. Daniel Brill, Franklin Cnty. http://www.nova-ohio. 2 (2012), available at Person Voting org/Franklin%20Cty%20Brill%20Report%20revis%208-16- 12.pdf. Husted, 2014 WL 2611316 (S.D. Obama for America v. Hus- Ohio June 11, 2014); see also Obama for America v. Supp. 2d 897, 910-11 (S.D. Ohio 2012) (opinion ted, 888 F. of State injunction). Secretary on preliminary and order injunction the preliminary Husted attempted to circumvent 2012-40 , which “strictly he issued Directive when order determining of elections from county boards prohibit[ed] or Monday before Sunday, Saturday, hours for the Friday, the election.”Jon Husted, Ohio Sec’y of State, Directive 2012-40, sos.state.oh.us (Sept. 4, 2012), http://www.sos. state.oh.us/SOS/Upload/elections/directives/2012/Dir2012- later days 2012-40 three Directive 40.pdf. Husted rescinded him to personally appear to explain after the court ordered See Jon Husted, Ohio Sec’y of State, Directive the directive. 2012-42, sos.state.oh.us (Sept. 7, 2012), http://www.sos. state.oh.us/SOS/Upload/elections/directives/2012/Dir2012- 42.pdf; Compl. at ¶ 44, Ohio State Conf. of the NAACP v. - 1, 2014) [herein (S.D. Ohio May Husted, No. 2:14-CV-404 after Husted Complaint].

205 206 207 197 198 199 200 201 202 203 204 192 193 194 195 196 Id. at 6. Id. at 7. , No. 13-CV- North Carolina Compl. at ¶ 29, United States v. 861 (M.D.N.C. Sept. 30, 2013). Id. at ¶ 30; see also Expert Decl. of Charles Stewart III at ¶¶ , Nos. 13-CV-861 North Carolina 129-214, United States v. (M.D.N.C. May 19, 2014) (citing the num- and 13-CV-660 from bers for 2008 and 2012, as well as discussing figures a negative impact on African other years and predicting voting cuts); Amended Rule early HB 589’s Americans from PhD at ¶¶ 26(A)(2)(B) Expert Report & Decl. of Paul Gronke, , North Carolina of N.C. v. Voters 8-41, League of Women (M.D.N.C. May 19, 2014). No. 13-CV-660 of N.C. v. Voters Compl. at ¶¶ 37-39, League of Women (M.D.N.C. Aug. 12, 2013). , No. 13-CV-660 North Carolina The trial in this case is not expected to take place until injunction are 2015, although motions for a preliminary pending. Michael C. Herron & Daniel A. Smith, Souls to the Polls: Michael C. Herron Bill 1355, 11 Election in the Shadow of House Early Voting L.J. 331, 341 (2012). Id. at 346. Id. at 343. Supp. 2d at 322–24. United States, 885 F. Florida v. in Florida, 26 & Charles Stewart, Early Voting Paul Gronke Paper Working Political Science Dep’t, (Mass. Inst. of Tech. No. 2013-12, 2013), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2247144. Id. , 885 F. Supp. 2d 299, 322–23 United States, 885 F. Florida v. (D.D.C. 2012). See, e.g., id. at 329–30, 337. Id. at 308-09. Advocate, Ad- Protection Florida Voter Thompson, Carolyn Rights, National Commission on Voting vancement Project, (transcript 31, 2014) Miami, Florida Regional Hearing (Mar. on file with the Lawyers’ Committee). Closing and & Daniel A. Smith, Precinct Michael C. Herron Times in Florida during the 2012 General Election, Wait Dartmouth College (Aug. 28, 2013), http://www.dartmouth. edu/~herron/HerronSmithAPSA2013.pdf. Scott Powers & David Damon, Analysis: 201,000 Voters Because of Long Lines, Orlando Sent. (Jan 29, Vote Didn’t 2013), http://articles.orlandosentinel.com/2013-01-29/ business/os-voter-lines-statewide-20130118_1_long-lines- sentinelanalysis-state-ken-detzner. , Holder v. (2013); Texas 133 S. Ct. 2886 Holder, v. Texas Aug. 27, 2013). No. 1:12-cv-00128 (D.D.C. of in Wake ID Law Revives Voter Sarah Ferris, Texas Pledge to Keep Up Court Decision, Opponents Supreme 2013) blog.chron.com/ (June 25, Fight, Houston Chron. txpotomac/2013/06/texas-revives-voter-id-law-in-wake-of- supreme-court-decision-opponents-pledge-to-keep-up- fight/#13481101=0. United States and the private by the The lawsuit brought using the caption of the suits have been consolidated , No. 2:13-cv-193 (S.D. Tex. Perry v. first-filed case, Veasey 2014). of State , Nat’l Conference Absentee and Early Voting http://www.ncsl.org/research/elections-and- Legislatures, campaigns/absentee-and-early-voting.aspx#early (last visited July 30, 2014).

187 188 189 190 191 181 182 183 184 185 186 175 176 177 178 179 180 171 172 173 174

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NATIONAL COMMISSION ON VOTING RIGHTS 230 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES NATIONAL COMMISSION ON VOTING RIGHTS 231 Brooks v. Gant, 2013 WL 4017036 (D.S.D. Aug. 6, 2013). v. Brooks At the beginning of the 2014 South Dakota legislative ses- of State Gant and the State Elections Board sion, Secretary Senate Bill 33, the purpose of which was to had proposed - by Four Direc private funding (of the type provided prohibit activities. being used to support election-related tions) from Counsel Senate Bill 33, South Dakota Legislative Research (Jan. 20, 2014), http://legis.sd.gov/Legislative_Session/Bills/ failed in commit- default.aspx?Session=2014.The measure tee on a 5 to 1 vote. Id. Id. at 8. Id. at 9. Program, Protection Voter Senior Att’y, Marian K. Schneider, National Commis- Testimony, Written Advancement Project, in Philadelphia, Pennsylvania Rights, Hearing sion on Voting 3 (Feb. 6, 2014) (on file with the Lawyers’ Committee). Chester Cnty. Complaint, supra note 229, at 9–11. Id. at 12–13. Id. at 2. Advancement Project, Senior Att’y, Marian Schneider, Rights, Penn- on Voting at National Commission Testimony on sylvania Regional Hearing 37 (Feb. 6, 2014) (transcript file with the Lawyers’ Committee). Alliance, Testimony Nadine Padilla, Native American Voters Rights, Colorado–New at National Commission on Voting on file 7, 2014) (transcript Mexico Regional Hearing 59 (Mar. with the Lawyers’ Committee). Member, Cheyenne River Sioux Tribe Julie Garreau, Rights, South on Voting at National Commission Testimony Dakota Regional Hearing 98–100 (May 1, 2014) (transcript on file with the Lawyers’ Committee). Estimates, 2008-2012 American Community Survey 5-Year http://factfinder2.census.gov/faces/ U.S. Census Bureau, (select the nav/jsf/pages/searchresults.xhtml?refresh=t “Dewey County, “race/ancestry” radio button; then search page, select results South Dakota”; then on the search (last “ACS DEMOGRAPHIC AND HOUSING ESTIMATES”) supra note 240. visited July 29, 2014); Garreau, supra note 240. Garreau, 12–5003–KES., 2012 WL Gant, No. CIV. v. Brooks 4482984, at *1 (D.S.D. Sept. 27, 2012). Jennifer Weddle, Co-Chair, Am. Indian Law Practice Grp., Am. Indian Law Practice Co-Chair, Jennifer Weddle, - National Com Testimony, Written LLP, Traurig, Greenberg Rights, Colorado-New Mexico Regional mission on Voting on file with Lawyers’ 7, 2014) (transcript Hearing 9 (Mar. Chief, Christopher Coates, Committee); see also Letter from of Justice, to U.S. Dep’t Civil Rights Div., Section, Voting 2008), in Amici Curiae Brief of State of Alaska (Sept. 10, and Alaska Native Voters the Alaska Federation of Natives, Aus- App. 45–46, Nw. in Support of Respondents at Tribes Holder, 557 U.S. 193 (2009), v. tin Mun. Util. Dist. No. One - available at http://www.lawyerscommittee.org/admin/vot ing_rights/documents/files/12-96-bsac-Alaska-Federation- of-Natives-et-al.pdf. Att’y Gen., J. Kim, Assistant Wan Determination Letter from Col- of Justice, to N. Harris Montgomery Cnty. U.S. Dep’t lege Dist., TX (May 5, 2006), available at http://www.justice. gov/crt/records/vot/obj_letters/letters/TX/TX-2960.pdf. Chester Cnty., No. 10-244 (E.D. Pa. Compl. at 6, English v. Chester Cnty. Complaint]. Jan. 20, 2010) [hereinafter Id. at 6. Id. at 6–7.

244 232 233 234 235 236 237 238 239 240 241 242 243 227 228 229 230 231 H.R. Rep. No. 109-478, at 41 (2006) (“Absent Section 5 would not have been a withdrawal of these coverage there particular polling place consolidations.The only alternative - would have been to file a Section 2 case and seek a prelimi nary injunction enjoining the consolidation of these polling to the Committee). places.”) (citing testimony presented Order Denying Preliminary Injunction Without and Denying Preliminary Prejudice Order Restraining Mail- Order Conditionally Dissolving Temporary State of California, v. ing of Overseas Ballots at 2, Oliverez 2003 WL 22025009 (N.D. Cal. Sept. 5, No. C-03-03658 JF, 2003), available at http://www.clearinghouse.net/chDocs/ Joseph D. not_public/VR-CA-0129-0004.pdf; Letter from of U.S. Dep’t Section, Civil Rights Div., Rich, Chief, Voting Cal. (Sept. 4, 2003), available at Cnty., Justice, to Monterey - http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/elec tions/richmont90403ltr2.pdf. Id. supra note 220, at 3, 5. Complaint, Oliverez - Injunction; Tempo Preliminary Show Cause re to Order Restraining Mailing of Overseas Ballots at 4, rary Order 2003 State of California, No. C-03-03658 JF, v. Oliverez WL 22025009 (N.D. Cal. Aug. 15, 2003), available at http://www.clearinghouse.net/chDocs/not_public/VR- CA-0129-0003.pdf. Oliverez v. State of California, No. C-03-03658 v. Compl. at 1, Oliverez 2003 WL 22025009 (N.D. Cal. Aug. 5, 2003) [hereinafter JF, available at http://www.clearinghouse. Complaint], Oliverez net/chDocs/not_public/VR-CA-0129-0001.pdf. Rights Act, Highlights of Nat’l Comm’n on the Voting Rights Hearings of the National Commission on the Voting The Minority Voters: Act 2005: A Supplement to Protecting 1982-2005, 1982-2005, at 57 Rights Act at Work, Voting (2005) (testimony of Robert Rubin). See Compl. at 6, 7–8, Miguel Hernandez Chapter of the Bexar Cnty., No. 5:03-cv- 00816 (W.D. Am. GI Forum v. http://www.clearinghouse. Aug. 26, 2003), available at Tex. net/chDocs/not_public/VR-TX-0420-0001.pdf. supra note 217, at 1–3, Restraining Order, See Temporary Reg’l Counsel, Mexican Am. of Nina Perales, 6; Testimony 51 Legal Def. & Educ. Fund, Southwest Regional Hearing 7, 2005) (on file with the Lawyers’ Committee). (Apr. Id. Id. Id. at *4. Id. at *5. Temporary Application for a Plaintiff’s Granting Order at 2, Miguel Hernandez Chapter of the Restraining Order Tex. Bexar Cnty., No. 5:03-cv-00816 (W.D. Am. GI Forum v. Restraining Order], Temporary Aug. 26, 2003) [hereinafter - available at http://www.clearinghouse.net/chDocs/not_pub lic/VR-TX-0420-0002.pdf. Status Report of the House Judiciary Comm. Democratic Status Report of the House 4 in Ohio Wrong Democracy: What Went Staff, Preserving (2012). Cnty., 2010 WL 4226614, at Benson v. Spirit Lake Tribe *1–2 (D.N.D. Oct. 21, 2010). Id. at *6. Id. at *3, *5–6. Id. at *3. available at http://b.3cdn.net/advancement/ mary (2013), f5d1203189ce2aabfc_14m6vzttt.pdf.

226 225 222 223 224 220 221 218 219 213 214 215 216 217 208 209 210 211 212 - - - - . “The Department of Justice Department Targets ACORN But Justice Department Targets General to do this and thus far there has been a has been this and thus far there General to do - re the Department’s deafening silence.” “I think best, is tepid, and at sponse to these issues, at problem what we think is a serious worst ignores Hen it,” [Wade] to address and their responsibility Con the Leadership derson [Executive Directorof on Civil Rights] saId ference its jurisdiction is limited. Justice often argues that that they have giv But we think the interpretation and narrow en to their jurisdiction is exceedingly use to responsibility larger the certainly ignores it the bully pulpit of the Attorney General to make prosecute vigorously will Department the that clear any attempt to possible, under federal law, where American the right of duly registered suppress citizens.” Steven Rosenfeld, Promises to Keep: The Impact of the Voting to Keep: The Impact of the Voting ties Union, Promises Rights Act in 2006, at 11 (2006), available at https://www. aclu.org/files/images/asset_upload_file516_24396.pdf. Justice Department Suspends Most Poll- Evan Perez, , CNN (July 22, 2014) http://www.justice.gov/ Watching criminal/pin/docs/electbook-rvs0807.pdf. Liz Kennedy et al., Dēmos & Common Cause, Protecting Challenges and Against Wrongful to Vote the Freedom Intimidation 4 (2012), available at http://www.demos.org/ sites/default/files/publications/BulliesAtTheBallotBox-Final. pdf. Where The Wild The The Poll- II, Where Things Are: James J. Woodruff First Amendment, 50 Intimidation, and the ing Place, Voter 253, 266–67 (2011). U. Louisville L. Rev. of Craig C. Donsanto & Nancy L. Simmons, U.S. Dep’t (7th 54–55 Offenses Election of Prosecution Federal Justice, ed. 2007), available at http://www.justice.gov/criminal/pin/ docs/electbook-rvs0807.pdf. 42 U.S.C. § 1973(a). As discussed in Chapter 3, it appears that DOJ has jurisdictions stopped sending observers to formerly covered of the Shelby County decision. 42 U.S.C. § as a result 1973f. About Federal Observers and Election Monitoring, U.S. - Justice, http://www.justice.gov/crt/about/vot/ex of Dep’t amine/activ_exam.php. Id. and 8—The Federal Rights Act: Sections 6 2006 Voting the Hearing Before Examiner and Observer Program the Subcomm. on the Constitution of the H. Comm. on Judiciary, 109th Cong. 49 (2005) (statement of Barry H. Former Deputy Chief and Acting Chief, Voting Weinberg, of Justice) [hereinafter U.S. Dep’t Section, Civil Rights Div., Statement]. Weinberg Am. Civil Liber & Deborah J. Vagins, Fredrickson Caroline Rights Act: Sections 6 and 8—The Federal 2006 Voting the Before Hearing Examiner and Observer Program Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 75–76 (2005) (statement of Rep. Subcomm. on the Constitution Member, John Conyers, Jr., of the H. Comm. on the Judiciary). , Alternet (Oct. 22, 2008) Suppression Voter GOP Ignores http://www.alternet.org/story/104201/justice_department_ targets_acorn_but_ignores_gop_voter_suppression.

260 261 251 252 253 254 255 256 257 258 259

- - - “We really need the Justice Department to get need really “We publicly, and make a pronouncement, out there will that voter intimidation and voter suppression not be tolerated because it violates federal law,” of the Cam said Gerry Hebert, executive director paign Legal Center and a former Department Vot have asked the Attorney ing Section Chief. “We , No. 3:06-cv-01575- Brewer See Compl., Navajo Nation v. Ariz. May 27, 2008). , Adam Serwer, Section 11(b) And Why the NBPP See e.g., Adam Serwer, (July 12, 2014) http:// , Am. Prospect Dropped Case Was prospect.org/article/section-11b-and-why-nbpp-case-was- In a 2008 article, voting rights advocates argued dropped. use of the VRA against voter intimidation: for greater Letter from Jon Greenbaum, Chief Counsel & Senior Deputy Chief Counsel & Senior Deputy Jon Greenbaum, Letter from to Lawyers’ Committee for Civil Rights Under Law, Dir., Clear Channel Outdoor (Oct. 9, 2012) (on file with the Lawyers’ Committee). New Black Panther Party for Self-De- See United States v. United States SD (E.D. Pa. 2009); fense, No. 2:09-CV-0065 Supp. 2d 440 (S.D. Miss. 2007), aff’d 561 , 494 F. Brown v. brought 2009). Both of these cases were 420 (5th Cir. F.3d against African Americans. The New Black Panther Party were case involved allegations that members of the party of a in Philadelphia polling place dressed standing in front voters or people who in uniform, insulting and threatening voters. The actions of the Party members were aiding were DOJ dismissed the case on videotape. Ultimately, captured of against the Party and some of the defendants after one displaying a the defendants was enjoined by a court “from on any weapon within 100 feet of any open polling location otherwise election day in the City of Philadelphia, or from violating 42 U.S.C. § 1973i(b).” Judgment, United States New Black Panther Party for Self-Defense, No. 2:09-CV- v. case, the district 0065 SD (E.D. Pa. 2009). In the Brown in majority-black a political boss court found that Ike Brown, had violated Section 2 by “administer[ing] Noxubee County, ways specifically in and manipulat[ing] the political process intended and designed to impair and impede participation Supp. 2d at of white voters and to dilute their votes.” 494 F. 485. The court did not find a violation of Section 11(b). Id. at 477 n.56. Mark Wandering Medicine, Rapid City Hearing (May 1, Medicine, Rapid City Hearing Mark Wandering Lawyers’ Committee); Forsyth 2014) (transcript on file with and Agric., http:// Montana, Forsyth Chamber of Commerce (last visited July 29, 2014). forsythmt.com/about.cfm McCulloch, No. CV Medicine v. Wandering Order, 26, 2014).The court had Mar. 12-135-BLG-DWM (D. Mont. Medi - Wandering injunction. denied a preliminary previously 2d 1083 (D. Mont. 2012), Supp. McCulloch, 906 F. cine v. , McCulloch Medicine v. vacated as moot by Wandering injunction 2013) (preliminary 544 Fed. Appx. 699 (9th Cir. was for 2012 requested was moot because relief request elections, which had passed). , In These The Missing Native Vote Stephanie Woodard, Times 2014), http://inthesetimes.com/ar (June 10, ticle/16773/the_missing_native_vote. ROS (D. Ariz. June 20, 2006). The case was consolidated ROS (D. Ariz. June 20, 2006). The case was consolidated Arizona, No. 2:06-cv-01268-ROS, and In- with Gonzalez v. , No. 3:06-cv-01362-ROS. Brewer tertribal Council of Ariz. v. Gonzalez v. Arizona, No. 3:06-cv-01575-ROS (D. Gonzalez v. Order,

250 247a 247b 248 249 245 246 247

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NATIONAL COMMISSION ON VOTING RIGHTS 232 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES NATIONAL COMMISSION ON VOTING RIGHTS 233 8, 2014), http://www.radioiowa.com/2014/05/08/schultz- says-two-year-investigation-found-117-cases-of-alleged- voter-fraud/. Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, Voting §§ 202, 203, 89 Stat. 400, 401–402. See also Rodolfo O. Change the de la Garza & Louis DeSipio, Save the Baby, Latino Electoral Participation and Scrub the Tub: Bathwater, Rights Act Coverage, 71 of Voting After Seventeen Years 1479, 1481–82 (1993). L. Rev. Tex. 121 Cong. Rec. S5311-5323, S5313 (daily ed. April 7, 1975) (statement of Sen. Evan Bayh). 127 Cong. Rec. H6841-6878, H6866 (daily ed. Oct. 2, 1981) (statement of Rep. Leland). Am. Civil Liberties Union, The Case for Extending and Act 842–43 (citing Letter to Rights Amending the Voting District Att’y Cnty. Times, Waller from Waller the Editor, 5, 2003)), available at https://www.aclu.org/files/pdfs/ (Nov. votingrightsreport20060307.pdf. Id. at 843; see also Prairie View Chapter of NAACP v. 2004). Kitzman, No. H-04-459 (S.D. Tex. Minority Rights Act, Protecting Nat’l Comm’n on the Voting 1982-2005 65–66 Rights Act At Work The Voting Voters: by John B. Strasburger (2006), at (information provided the students); see a lawyer representing (Houston, Tex.), County Waller also Prairie View Chapter of NAACP v. Comm’n, No. H-04-0591 (S.D. Tex.). supra note 284, at 26. Server, Id. at 27. Reeve Hamilton, A Polling Place of Their Own: Students Win Times, Sept. 28, 2013, at A29A. a Long Battle, N.Y. S. Rep. No. 94-295, at 3 (1975). Id. at 39. 42 U.S.C. § 1973aa-1a. The illiteracy rate of such language minority citizens in the political subdivision must also be higher than the national illiteracy rate. Id. 42 U.S.C. § 1973aa-1a. 42 U.S.C. § 1973b(f)(1), (3). Id. Immigrant and Tenn. Coordinator, Commc’ns. Eben Cathey, Regional Hearing (May 8, Refugee Rights Coal., Nashville Lawyers’ Committee); Eben 2014) (transcript on file with National Commission on Voting Testimony, Written Cathey, Hearing (May 8, 2014) (expert Rights, Nashville Regional (on file with the Lawyers’ Committee). report) 2d 822, 827 (2006). Supp. Blackwell, 460 F. Boustani v. Id. at 825. Id. at 826. Id. Id. at 827. Supp. 1245, 1261 (S.D. Tex. , 445 F. Texas United States v. 1978). United States, 439 U.S. 1105, 1105 (1979). Symm v. Supp. at 1253. , 445 F. Texas United States v. the Walk Prairie View A&M Students Walk Ronald D. Server, Spring/Summer of Political Engagement, Peer Review, 2008, at 26, available at http://www.aacu.org/peerreview/ pr-spsu08/documents/pr-spsu08_server.pdf.

15 16 17 285 286 287 288 289 290 10 11 12 13 14 274 275 276 277 278 279 280 281 282 283 284 42 U.S.C. §§ 1973b(e)(1), (2). 42 U.S.C. § 1973aa-6. 42 U.S.C. § 1973b(e). Rights Juan Cartagena, Latinos and Section 5 of The Voting Act: Beyond Black and White, 18 Nat’l Black L.J. 201, 206–07 (2004–2005). See Ortman & Shin, supra note 1, at 9. 42 U.S.C. §§ 1973b(f)(3), 1973aa-1a(b)(1), 1973aa-1a(b) (3)(A). 42 U.S.C. § 1973aa-1a(b)(2)(A). Pt. 55.6(a)(2)(ii). 42 U.S.C. § 1973aa-1a(b)(2)(A)(ii); 28 C.F.R. Jennifer M. Ortman, Chief of Populations Projections Branch Jennifer M. Ortman, Chief of Populations Projections & Hyon B. Shin, Education and Stratification Branch, at the Annual 2010–2020 Presented Language Projections Meetings of the American Sociological Association 3 (Aug. 20–23, 2011). It should be noted that these numbers not yet citizens. who are include some residents See Bettis, supra note 68. Investigation O. Kay Henderson, Schultz Says Two-Year Fraud, Radio Iowa (May Found 117 Cases Of Alleged Voter United States v. City of at 1, United States v. and Decree Consent Order Hamtramck, No. 00-73541 (E.D. Mich. Aug. 4, 2000). Id. at 3–4. Supp. 2d 424, 464 (D.D.C. Holder, 811 F. v. Shelby Cnty. 2011) (alteration in original) (citations and internal quotation marks omitted). Statement, supra note 257); Id. at 486 (quoting Weinberg 848, 870 (D.C. Holder, 679 F.3d v. see also Shelby Cnty. about “dis- by Congress 2012) (noting evidence heard Cir. and harassment of minorities by poll criminatory treatment officials in Alabama”) (citation omitted). Chris Brook, Legal Director, Am. Civil Liberties Union of Legal Director, Chris Brook, Rights, Commission on Voting at National N.C., Testimony 28, 2014) (transcript on file Hearing (Mar. North Carolina with the Lawyers’ Committee). Chris Robarge, Cent. Mass. Field Coordinator, Am. Civil Field Coordinator, Chris Robarge, Cent. Mass. Commission at National Liberties Union of Mass., Testimony 31, 2014) (Mar. Rights, Boston Regional Hearing on Voting (transcript on file with the Lawyers’ Committee). Memo 2012-26: Gary O. Bartlett, SBOE Numbered at Polling Sites and Reports of Maintaining Order Other Illegality, State Bd. of Elections of N.C. (Oct. - 2012), http://www.wral.com/asset/news/state/nccapi tol/2012/10/29/11715961/2012-26_Maintaining_Order_at_ Voting_Sites_2_.pdf. Paul Taylor et al., Pew Research Ctr., The Return of the Ctr., et al., Pew Research Paul Taylor Household (2010), available at Multi-Generational Family http://www.pewsocialtrends.org/files/2010/10/752-multi- generational-families.pdf. Building a ‘Poll Watcher’ Party’s Mock, How the Tea Brentin http:// Network for November, Colorlines (Aug. 23, 2012) colorlines.com/archives/2012/08/true_the_votes_large_ see also Kennedy et and_growing_far-right_network.html; al., supra note 261, at 4–8, 28. Maureen Haver, Bd. Member, Common Cause, Testimony at at Cause, Testimony Common Bd. Member, Haver, Maureen Hearing (Apr. Rights, Texas National Commission on Voting with the Lawyers’ Committee). 5, 2014) (transcript on file

6 7 8 9 2 3 4 5 CHAPTER 7 1 272 273 268 269 270 271 267 265 266 263 264 262 74–75 (2011); see also Daniel Identities 74–75 (2011); and Their Political The Electoral Impacts into Votes: J. Hopkins, Translating 827 , 55 Am. J. Pol. Sci. 814, of Spanish-Language Ballots language assistance has a (2011) (finding that adopting election results). and consistent” impact on “strong Jerry Vattamala, Attorney, Asian Am. Def. & Educ. Fund, Asian Attorney, Jerry Vattamala, Rights, Penn- at National Commission on Voting Testimony sylvania State Hearing 74–75 (Feb. 6, 2014) (transcript on file with the Lawyers’ Committee). Rights, of the National Commission on Voting Transcript 2014, p. 140; 31, Florida Hearing, Miami, Florida, March Id. at 7. Id. (citing Alyssa Newcomb, Arizona Elections Department Flubs Election Date, ABC News (Oct. 17, 2012, 10:26 AM), http://abcnews.go.com/blogs/politics/2012/10/arizona- Ed elections-department-flubs-election-date/); see also Payne & Michael Martinez, Arizona County Gives Wrong , CNN, (Oct. 8, 2012, Cards Election Date in Spanish Voter 5:40 AM), http://www.cnn.com/2012/10/18/us/arizona- spanish-election-ballot/. Shelly & Forbes, supra note 50, at 7 Memorandum from - with Spanish Trans Controversy (citing John Rosman, More (Oct. 24, 2012), http://www. lation in Arizona, Fronteras fronterasdesk.org/news/2012/oct/24/more-controversy- spanish-translation-arizona). Shelly & Forbes, supra note 50, at 7 Memorandum from for Problems Spanish Translation (citing Michelle Garcia, Maryland Ballot Summary, Advocate (Oct. 23, 2012, 3:03 - PM), http://www.advocate.com/politics/2012/10/23/span ish-translation-problems-maryland-ballot-summary). International in Business: Elections Lost Adam Wooten, News (Oct. 28, 2011, 7:00 AM), http:// , Deseret Translation www.deseretnews.com/article/705393232/Elections-lost- in-translation.html. supra note 47, at 13. & Waismel-Manor, Jones-Correa Asian Americans Deanna Kitamura, Senior Staff Attorney, at National Commis- Advancing Justice of L.A., Testimony Rights, California State Hearing 142–43 (Jan. sion on Voting 30, 2014) (transcript on file with the Lawyers’ Committee). Voting Bay Area, Lawyers’ Comm. for Civil Rights of the S.F. Century Cali- Rights Barriers & Discrimination in Twenty-First 2014), available at http://www. fornia (2000-2013) 23 (Mar. lccr.com/assets/press-releases/Voting-Rights-Barriers-In- 21st-Century-Cal%20Update.pdf. Protecting Equal Access Rights, Protecting Nat’l Comm’n on Voting State Rights In The Golden In A Diverse Democracy: Voting 11 (2014), available at http://votingrightstoday.org/ncvr/ “Download the Full Report”). (select resources/california Language Waismel-Manor, & Israel Michael Jones-Correa Rights Act: Effectiveness and Under the Voting Provisions Admin., Comm’n on Election Implementation (Presidential https://www.supportthevoter. Sept. 4, 2013), available at - gov/files/2013/09/Michael-Jones-Correa-Language-Provi sions-VRA.pdf. Id. at 16. The Battle over Bilingual Ballots: James Thomas Tucker, Voting Language Minorities and Political Access Under the Rights Act 138–46 (2009). Jacob Shelly & Matt Forbes to Nate Memorandum from 2, 1 – Version Persily on Language Challenges and Voting (June 17, 2013), available at https://www.supportthevoter. gov/files/2013/08/Language-Challenges-and-Voting- Forbes-and-Shelly.pdf.

59 60 51 52 53 54 55 56 57 58 46 47 48 49 50 - Id. (citing H.R. Rep. No. 102-655, at 6 (1992)). Rights Act: Section 203—Bilingual Id. at 2 (citing Voting the (Part III): Hearing Before Election Requirements Subcomm. On the Constitution of the H. Comm. on the Judiciary, 109th Cong. 17 (2005) (statement of Jacqueline of American National Congress Johnson, Executive Director, Indians)). Citizenship Kim, From & Youjin Wang Andrea See Tova Registration For New Americans, Improving to Voting: (Dec. 19, 2011) (enumerating studies finding increased provided). participation when bilingual election materials are Scholars also found in a survey of several thousand of Asian Americans that an overwhelming majority of Asians not in English would use voting materials in their lan- proficient et al., Asian See Janelle Wong provided. guage if they were American Political Participation: Emerging Constituents Current Population Survey: Voting &Registration Supple- Survey: Voting Population Current 2012). (Nov. ment, U.S. Census Bureau detailed discussion about his- Refer to Chapter 4 for a more these torical discrimination and voter participation rates for voter turnout The Americans, statistics for Asian groups. based on the 2012 Election and Latinos, and whites are - of the Census. See 2012 Vot U.S. Bureau from taken were ing and Registration Data, supra note 39 (download “Table by Sex, Race and and Registration 4b. Reported Voting Hispanic Origin, for State: November 2012”). Native American Rights Fund, Bar James Thomas Tucker, and How to Overcome riers to Language Minority Voters Comm’n on Election Admin. 2013), Them 3 (Presidential available at https://www.supportthevoter.gov/files/2013/09/ Jim-Tucker-Barriers-to-Language-Minority-Voters-and-How- to-Overcome-Them-Testimony-to-PCEA.pdf. Id. Id. Id. at 9. S. Rep. No. 102-315, at 4 (1992). Id. Id. at 11. Id. at 14. H.R. Rep. No. 109-478, at 11 (2005). Id. at 52. Id. of November 2012 – and Registration in the Election Voting https://www.census. , U.S. Census Bureau, Detailed Tables gov/hhes/www/socdemo/voting/publications/p20/2012/ - 2012 Vot tables.html (last visited July 29, 2014) [hereinafter 4b. Reported ing and Registration Data] (download “Table and Hispanic Origin, and Registration by Sex, Race Voting for State: November 2012”). at H6870 (statement of Rep. Robert Garcia). Id. at H6870 (statement 30, 1981) (state- E4503-04 (daily ed. Sept. 127 Cong. Rec. ment of Rep. Ron Wyden). 7, 1981) S3542 (daily ed. Apr. 127 Cong. Rec. S3539-42, Mathias). (statement of Sen. Charles 3 (1992). H.R. Rep. No. 102-655, at Language Assistance Act of 1992, Pub. L. Rights Voting 921, 921. No. 102-344, § 2, 106 Stat. 4 (1992). H.R. Rep. No. 102-655, at See id. at 7–8. Id. at 8. (1992). S. Rep. No. 102-315, at 17 106 Stat. 921, 921. Pub. L. No. 102-344, § 2, 4 (1992). H.R. Rep. No. 102-655, at

43 44 45 40 41 42 29 30 31 32 33 34 35 36 37 38 39 18 19 20 21 22 23 24 25 26 27 28

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES

NATIONAL COMMISSION ON VOTING RIGHTS 234 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE ENDNOTES NATIONAL COMMISSION ON VOTING RIGHTS 235 Hearing on Section 203] Hearing on Section [hereinafter 8, 2005) 12 (Nov. J. Schlozman, Acting Assistant (written testimony of Bradley Att’y Gen., of the United States)). Id. at 576–77. 525, 530 , 250 F.Supp.2d Berks Cnty. United States v. (2003) (“Berks I”). Id. Id. at 531. injunction); Berks II, 277 See id. at 542 (granting preliminary Supp. 2d at 582 (granting permanent injunction). F. Supp. 2d at 584–85. Berks II, 277 F. Incorporat- Es Su Voz! Jocelyn Friedrichs Benson, ¡Su Voto Into American of Limited English Proficiency ing Voters 251, 298 (2007). Democracy, 48 B.C. L. Rev. City of Ham- United States v. and Order, Consent Decree tramck, No. 00-73541 (E.D. Mich. Aug. 7, 2000). Benson, supra note 105, at 301. 2006) (en 1046, 1053 (9th Cir. Lever, 463 F.3d Padilla v. banc). Highlights of Hearings of the National Commission on the Highlights of Hearings of of Ro- Act 2005 (February 2006) (Testimony Rights Voting of the Houston Chapter of the gene Calvert, past president p. 14; Lisa Falkenbert, Organization of Chinese Americans) 16 House, Houston Chronicle, Heflin likes his odds in the Dec. 2005, B1. supra note 91, at 248 (citing Hearing on Section Tucker, 203, supra note 91, at 12). Cnty., No. Salem Complaint at 1–2, 7–9, United States v. (D.N.J. July 24, 2008), available 1:08-cv-03726-JHR-AMD - at http://www.justice.gov/crt/about/vot/sec_203/docu ments/pennsgrove_comp.pdf. Id. 5–6. Salem County, No. United States v. Settlement Agreement, 1:08-cv-03726-JHR-AMD (D.N.J. July 24, 2008). Supp. 2d 570, 575 , 277 F. Berks Cnty. United States v. (2003) (“Berks II”). Id.

99 100 101 102 103 104 105 106 107 108 92 93 94 95 96 97 98

, 3:07-CV-00098.

at 7. James Thomas Tucker, Enfranchising Language Minority James Thomas Tucker, of the Voting Citizens: The Bilingual Election Provisions J. Legis & Pub. Pol’y 195, 248 (2006) Rights Act, 10 N.Y.U. Rights Act: Section 203—Bilingual Election (citing Voting the Subcomm. on the (Part I) Hearing Before Requirements Constitution of the H. Comm. on the Judiciary, 109th Cong. Voting Rights Act: Evidence of Continued Need Hearing Voting the Subcomm. on the Constitution of the H. Comm. Before 8, 2006) (written on the Judiciary, 109th Cong. 308 (Mar. testimony of Bill Lann Lee and Joe Rogers). Bd. Member, Q. Tran, Trang Id. at 3680–81 (Letter from Public Dir. to David Beirne, Harris Cnty. Asian Am. Legal Ctr. Affairs (Oct. 30, 2003)). Jill Harmacinski, Latingua Becomes First Hispanic Mayor 4, (Nov. to Be ‘Mayor for All’, Eagle Trib. in State; Vows 2009), http://www.eagletribune.com/local/x546147919/ Lantigua-becomes-first-Hispanic-mayor-in-state-vows-to- be-mayor-for-all. Id. at 15–17. Id. at 21. Hearing to Examine the VRA, supra note 79, at 29 (written testimony of Joe Rogers). Id. (Mass.) City Council Member, Devers, Lawrence Marcos Rights Act, at National Commission on the Voting Testimony Northeast Regional Hearing 158 (June 14, 2005) (transcript on file with the Lawyers’ Committee). To Examine the Impact and Effectiveness of the Voting Effectiveness of the Examine the Impact and To the Subcomm. on the Constitu- Rights Act: Hearing Before tion of the H. Comm. on the Judiciary, 109th Cong. 29 Hearing to Examine the VRA] (written (2005) [hereinafter testimony of Joe Rogers). , No. 98-CV-12256-WGY. Complaint at 1–2, Lawrence Id. at 3. and See Joint Motion for Entry of Settlement Agreement (Sept. 10, , No. 98–CV-12256-WGY 12, Lawrence at Order 1999 D. Mass). Id. Id. at 257. Id. at 258–60. Id. at 260. Id. at 269–70. Id. at 274–75 (footnotes omitted). , No. 98-CV- Lawrence Complaint at 1, United States v. 5, 1998 D. Mass). 12256-WGY (Nov. Id. at 8. Id. at 7–8 (footnotes omitted). Id. at 8. The Power of Observation: The Role James Thomas Tucker, Rights Act, 13 Mich. of Federal Observers under the Voting J. Race & L. 227, 256 (2007). , 3:07-CV- Bethel, Alaska Nick v. Settlement Agreement, 00098 (D. Alaska Feb. 4, 2010). Complaint at 4, 6, Nick Id. Id. at 5. Id. at 9. Id. at 5. granting preliminary at 9 (order Nick, 3:07-CV-00098, injunction). Consent Order, United States v. Miami-Dade Cnty., Cnty., Miami-Dade States v. United also Consent Order, June 17, 2002). (S.D. Fla. 1:02-cv-21698-PAS

91 89 90 88 83 84 85 86 87 79 80 81 82 72 73 74 75 76 77 78 68 69 70 71 61 62 63 64 65 66 67 NAACP of National Association for the Advancement People Colored NALEO National Association of Latino Elected Officials NCVR Rights National Commission on Voting NVRA Registration Act National Voter SNAP Supplemental Nutrition Assistance Program TANF Assistance for Needy Families Temporary VRA Rights Act Voting A APPENDIX ABBREVIATIONS ABBREVIATIONS AALDEF Asian American Legal Defense Fund ACLU American Civil Liberties Union DMV Department of Motor Vehicles DOJ Department of Justice EAC Election Assistance Commission Lawyers’ Committee Lawyers’ Committee for Civil Rights Under Law LEP Limited English Proficiency MALDEF Mexican American Legal Defense and Educational Fund

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE : ABBREVIATIONS NATIONAL COMMISSION ON VOTING RIGHTS

APPENDIX A 236 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE

237 APPENDIX B : MAPS APPENDIX B

MAPS NATIONAL COMMISSION ON VOTING RIGHTS

ment of Justice records. Cartography: Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law. Under Rights Civil for Committee Lawyers’ Project, Rights Voting Cartography: records. Justice of ment

- Depart U.S. from derived Data: period. this during Alaska or Hawaii in denials no were There Columbia. of District the for Court District U.S. the by granted was

South Dakota. Figures do not include objections withdrawn based upon a subsequent change in law or fact, and an objection where preclearance subsequently subsequently preclearance where objection an and fact, or law in change subsequent a upon based withdrawn objections include not do Figures Dakota. South

Objections counted by objection letter, and court denials counted by unsuccessful Section 5 declaratory judgement actions. Includes one Section 3 objection in in objection 3 Section one Includes actions. judgement declaratory 5 Section unsuccessful by counted denials court and letter, objection by counted Objections

From 1995 to June 2014 June to 1995 From Map 1: Preclearance Denials Preclearance 1: Map

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE : MAPS NATIONAL COMMISSION ON VOTING RIGHTS

APPENDIX B 238

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE APPENDIX B: MAPS NATIONAL COMMISSION ON VOTING RIGHTS

239

Committee for Civil Rights Under Law. Under Rights Civil for Committee

ment of Justice records and U.S. Census Bureau, Census 2010 Redistricting Data (PL 94-171) Summary File. Cartography: Voting Rights Project, Lawyers’ Lawyers’ Project, Rights Voting Cartography: File. Summary 94-171) (PL Data Redistricting 2010 Census Bureau, Census U.S. and records Justice of ment

was granted by the U.S. District Court of the District of Columbia. There were no denials in Hawaii or Alaska during this period. Data: derived from U.S. Depart U.S. from derived Data: period. this during Alaska or Hawaii in denials no were There Columbia. of District the of Court District U.S. the by granted was -

South Dakota. Figures do not include objections withdrawn based upon a subsequent change in law or fact, and an objection where preclearance subsequently subsequently preclearance where objection an and fact, or law in change subsequent a upon based withdrawn objections include not do Figures Dakota. South

Objections counted by objection letter, and court denials counted by unsuccessful Section 5 declaratory judgement actions. Includes one Section 3 objection in in objection 3 Section one Includes actions. judgement declaratory 5 Section unsuccessful by counted denials court and letter, objection by counted Objections

Voting Age Population Age Voting

With Non-White Percentage of of Percentage Non-White With

From 1995 to 2013 to 1995 From

Map 2: Preclearance Denials Preclearance 2: Map

derived from U.S. Department of Justice records. Cartography: Voting Rights Project, Lawyers' Committee for Civil Rights Under Law Under Rights Civil for Committee Lawyers' Project, Rights Voting Cartography: records. Justice of Department U.S. from derived

There were no observers in Hawaii during this period. Data: U.S. Census Bureau, Census 2010 Redistricting Data (PL 94-171) Summary File and observer data data observer and File Summary 94-171) (PL Data Redistricting 2010 Census Bureau, Census U.S. Data: period. this during Hawaii in observers no were There

Voting Age Population Age Voting

of Percentage Non-White With

2012 to 1995 From Map 3: Jurisdictions with Observer Coverage Observer with Jurisdictions 3: Map

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE : MAPS NATIONAL COMMISSION ON VOTING RIGHTS

APPENDIX B 240

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE APPENDIX B: MAPS NATIONAL COMMISSION ON VOTING RIGHTS

241

mittee for Civil Rights Under Law Under Rights Civil for mittee

- Com Lawyers' Project, Rights Voting Cartography: records. Justice of Department U.S. from Derived Data: period. this during Hawaii in observers no were There

From 1995 to 2012 to 1995 From Map 4: Total Number of Observers of Number Total 4: Map

Data and cartography: Voting Rights Project, Lawyers' Committee for Civil Rights Under Law Under Rights Civil for Committee Lawyers' Project, Rights Voting cartography: and Data

Includes cases in which courts ruled for plaintiffs and litigation settlements; does not include Section 2 cases challenging a failur a challenging cases 2 Section include not does settlements; litigation and plaintiffs for ruled courts which in cases Includes e to provide language assistance. assistance. language provide to e

From 1995 to June 2014 June to 1995 From Map 5: Successful Section 2 Cases 2 Section Successful 5: Map

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE : MAPS NATIONAL COMMISSION ON VOTING RIGHTS

APPENDIX B 242

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE APPENDIX B: MAPS NATIONAL COMMISSION ON VOTING RIGHTS

243

the Voting Rights Act. Data and cartography: Voting Rights Project, Lawyers' Committee for Civil Rights Under Law Under Rights Civil for Committee Lawyers' Project, Rights Voting cartography: and Data Act. Rights Voting the

Includes cases in which courts ruled for plaintiffs, litigation settlements, and non-litigation settlements. Cases filed under Sections 2, 4(e), 4(f)(4), 203, and/or 208 of of 208 and/or 203, 4(f)(4), 4(e), 2, Sections under filed Cases settlements. non-litigation and settlements, litigation plaintiffs, for ruled courts which in cases Includes

From 1995 to June 2014 June to 1995 From

Assistance Cases Assistance Map 6: Successful Language Language Successful 6: Map

Rights Project, Lawyers' Committee for Civil Rights Under Law Under Rights Civil for Committee Lawyers' Project, Rights

*For Alaska, coverage refers to coverage of a borough or census area. Data: U.S. Census Bureau, 2011 Determinations under Section 203. Cartography: Voting Voting Cartography: 203. Section under Determinations 2011 Bureau, Census U.S. Data: area. census or borough a of coverage to refers coverage Alaska, *For

Section 203 of the Voting Rights Act Rights Voting the of 203 Section Map 7: 2011 Language Minority Determinations Minority Language 2011 7: Map

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE : MAPS NATIONAL COMMISSION ON VOTING RIGHTS

APPENDIX B 244

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE APPENDIX B: MAPS NATIONAL COMMISSION ON VOTING RIGHTS

245

Under Law Under

Data: U.S. Census Bureau, Census 2010 Redistricting Data (PL 94-171) Summary File. Cartography: Voting Rights Project, Lawyers' Committee for Civil Rights Rights Civil for Committee Lawyers' Project, Rights Voting Cartography: File. Summary 94-171) (PL Data Redistricting 2010 Census Bureau, Census U.S. Data:

Population in 2010 in Population

Percentage of Voting Age Age Voting of Percentage

African-American: or Black 8: Map

Under Law Under

Data: U.S. Census Bureau, Census 2010 Redistricting Data (PL 94-171) Summary File. Cartography: Voting Rights Project, Lawyers' Committee for Civil Rights Rights Civil for Committee Lawyers' Project, Rights Voting Cartography: File. Summary 94-171) (PL Data Redistricting 2010 Census Bureau, Census U.S. Data:

Navajo, and Sioux and Navajo,

One Race including Cherokee, Chippewa, Chippewa, Cherokee, including Race One

Percentage of Voting Age Population in 2010 in Population Age Voting of Percentage Map 9: American Indian and Alaska Native: Native: Alaska and Indian American 9: Map

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE : MAPS NATIONAL COMMISSION ON VOTING RIGHTS

APPENDIX B 246

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE APPENDIX B: MAPS NATIONAL COMMISSION ON VOTING RIGHTS

247

Under Law Under

Data: U.S. Census Bureau, Census 2010 Redistricting Data (PL 94-171) Summary File. Cartography: Voting Rights Project, Lawyers' Committee for Civil Rights Rights Civil for Committee Lawyers' Project, Rights Voting Cartography: File. Summary 94-171) (PL Data Redistricting 2010 Census Bureau, Census U.S. Data:

Japanese, Korean, Vietnamese, and Other and Vietnamese, Korean, Japanese,

One Race including Chinese, Filipino, Asian Indian, Indian, Asian Filipino, Chinese, including Race One Map 10: Asian: Percentage of Voting Age Population in 2010 in Population Age Voting of Percentage Asian: 10: Map

Under Law Under

Data: U.S. Census Bureau, Census 2010 Redistricting Data (PL 94-171) Summary File. Cartography: Voting Rights Project, Lawyers' Committee for Civil Rights Rights Civil for Committee Lawyers' Project, Rights Voting Cartography: File. Summary 94-171) (PL Data Redistricting 2010 Census Bureau, Census U.S. Data:

Voting Age Population in 2010 in Population Age Voting Map 11: Hispanic or Latino: Percentage of of Percentage Latino: or Hispanic 11: Map

PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE : MAPS NATIONAL COMMISSION ON VOTING RIGHTS

APPENDIX B 248 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE APPENDIX C: TABLES AND LINE GRAPHS NATIONAL COMMISSION ON VOTING RIGHTS 249 APPENDIX C APPENDIX TABLES AND AND TABLES LINE GRAPHS 18 99 15 191 512 306 149 119 235 297 138 120 180 716 385 525 894 663 1,074 1,093 1,123 1,850 10,702 Total Total Observers 6 2 9 9 5 3 2 2 27 43 10 37 52 23 10 15 19 13 24 54 46 583 172 Total Total Jurisdictions 0 0 0 0 0 0 0 1 1 1 0 0 0 0 2 3 2 7 0 1 1 0 19 Other 0 1 2 8 1 2 0 2 0 5 0 2 3 8 4 0 4 0 9 12 18 99 18 Municipal 0 0 0 0 0 0 0 0 0 1 0 0 1 0 0 0 0 0 0 4 3 2 11 School District 6 1 7 7 1 4 2 0 8 5 2 16 33 10 21 29 15 10 13 33 27 379 129 State 0 0 0 3 1 8 0 3 4 4 4 1 0 0 0 0 2 0 2 8 75 18 17 Election Type (Jurisdiction Counts) (Jurisdiction Election Type Federal AK PA AL SC AZ SD CA TX GA UT IL WA IN Total LA MA MI MS NE NJ NM NY OH Table 1: Federal Observers1: Table and Election by State 2012) – (1995 Type Data: Information derived from U.S. Department of Justice records. Data: Information derived from

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APPENDIX C 250 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE APPENDIX C: TABLES AND LINE GRAPHS NATIONAL COMMISSION ON VOTING RIGHTS 251 6.1 3.3 2.5 1.9 1.7 1.3 1.3 1.1 1.1 65.5 583 Share 10,702 Total 19 365 Other 836 635 489 416 323 321 277 276 1,548 16,524 99 1,733 Municipal Number (in thousands) 11 173 School District 379 7,196 State 75 1,235 Election Type Federal Language Spanish or Spanish Creole Vietnamese Korean Tagalog Russian Creole French Arabic Portuguese or Portuguese Creole African Languages Chinese Total Total Observers Total Jurisdictions Top Ten Languages Spoken by Limited English Proficiency Individuals, 2010 Languages Spoken by Limited English Proficiency Ten Top Rank 1 3 4 5 6 7 8 9 10 2 Data: Information derived from U.S. Department of Justice records. U.S. Department Data: Information derived from Tables 3–5:Tables Limited English ProficiencyPopulations (LEP) Table 2: Federal ObserversTable – 2012) (1995 Election by Type Data: Migration Policy Institute, National Center on Immigrant Integration Policy, “LEP Data Brief”. Dec. 2011 Data: Migration Policy Institute, National Center on Immigrant Integration Policy, 9.7% 8.4% 4.6% 4.1% 27.3% 13.3% 80.4 398.2 395.2 378.8 311.5 281.4 242.2 237.2 235.2 209.7 202.1 Change from 1990 Change from to 2010 (percent) Share of Total US LEP of Total Share Population (percent) 25,223 310 430 522 88 174 76 127 137 512 109 2010 LEP Population (thousands) 6,898 3,359 2,458 2,112 1,158 1,031 LEP Population LEP Population (thousands) 13,983 62 87 109 21 46 22 38 41 165 36 1990 LEP Population (thousands) Texas Illinois Florida California New York New Jersey State U.S. State North Carolina Georgia Arkansas Tennessee Nebraska South Carolina Utah Washington Alabama Nevada 2 3 4 5 6 7 8 9 10 1 Top Ten States with the Highest Growth in Limited English Proficiency Population, 1990 to 2010 Proficiency in Limited English States with the Highest Growth Ten Top Rank Top States for Number and Share of Limited English Proficiency Residents, 2010 English Proficiency of Limited and Share States for Number Top Rank 1 2 3 4 5 6 Data: Migration Policy Institute, National Center on Immigrant Integration Policy, “LEP Data Brief”. Dec. 2011 Data: Migration Policy Institute, National Center on Immigrant Integration Policy, Data: Migration Policy Institute, National Center on Immigrant Integration Policy, “LEP Data Brief”. Dec. 2011 on Immigrant Integration Policy, Data: Migration Policy Institute, National Center

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APPENDIX C 252 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE APPENDIX C: TABLES AND LINE GRAPHS NATIONAL COMMISSION ON VOTING RIGHTS 253 Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law. *Due to changes in the CPS race categories *Due to changes Rights Under Law. Lawyers’ Committee for Civil Rights Project, Voting earlier years. comparable with data from not directly beginning in 2003, 2004-2012 data on race are Data: U.S. Census Bureau, Current Population Survey, November 2012 and ealier reports, Table A-1. Analysis by Table November 2012 and ealier reports, Population Survey, Current Data: U.S. Census Bureau, Data: U.S. Census Bureau, Current Population Survey, November 2012 and ealier reports, Table A-1. Analysis by Table November 2012 and ealier reports, Population Survey, Current Data: U.S. Census Bureau, in the CPS race categories *Due to changes Rights Under Law. Lawyers’ Committee for Civil Rights Project, Voting earlier years. comparable with data from not directly beginning in 2003, 2004-2012 data on race are

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APPENDIX C 254 PROTECTING MINORITY VOTERS: OUR WORK IS NOT DONE

255 APPENDIX B : MAPS NATIONAL COMMISSION ON VOTING RIGHTS VISIT WWW.VOTINGRIGHTSTODAY.ORG Lawyers’ Committee for Civil Rights Under Law 1401 New York Avenue, NW, Suite 400 Washington, D.C. 20005 202-662-8600 http://www.lawyerscommittee.org/