III. Legal Actions Taken by Election Justice USA and Other Parties
A primary strategy of Election Justice USA in combating voter suppression and election fraud throughout the course of the 2016 Democratic primaries has been legal action. The present section summarizes all relevant lawsuits filed by Election Justice USA, its allies, and unaffiliated parties. This section concludes by discussing the impact of a recent US Supreme Court ruling on voting rights and, in particular, on voting during the 2016 presidential primary season.
In Maricopa County, Arizona, which covers Phoenix and outlying areas, 140 out of 200 polling locations were eliminated, leaving only one voting center for every 21,000 voters. The county’s reduction by 70% of available places to vote, which they claimed was done to save money, resulted in waiting lines that in some cases lasted for 5½ hours. At least three lawsuits were brought by various organizations as a result of these actions.
In the first of these cases, Tucson resident John Brakey tried to invalidate the election on the ground that the reduction in polling locations constituted election fraud. Although Maricopa County Superior Court Judge David Gass acknowledged that the number of polling places was inadequate, he dismissed the lawsuit after finding that Mr. Brakey had not proved election board misconduct or fraud that would have changed the outcome.1
The Democratic National Committee, along with Hillary Clinton and Bernie Sanders’ campaigns, took a different approach in the second lawsuit, challenging the motivation behind the severe reduction in the number of polling places. The plaintiffs have filed two motions asking the court to grant preliminary injunctions against the state. One seeks to prevent a new “ballot harvesting” law (which would prohibit people from collecting early ballots from others and turning them in to elections officials) from taking effect. The other demands that Maricopa County come up with a polling place allocation plan before the November elections so that the mistakes of primary day are not repeated. Oral arguments on these motions are scheduled for August.2, 3
In the third case, the Lawyers Committee for Civil Rights Under Law has filed a suit challenging the reduction in Maricopa County polling places. The plaintiffs include voters who either had to wait in line for many hours before casting their ballots, or who were unable to vote at all. The lawsuit asks for a judgment declaring that the reduction in polling places violated the voters’ constitutional and statutory rights. It seeks an injunction providing for court supervision over all Maricopa County elections through and including the 2020 election, and requiring that election officials create a comprehensive plan to reduce wait times at the polls.4
The Civil Rights Division of the United States Department of Justice has also launched its own investigation into the reasons for the poll closings, and whether the elimination of polling places violated Federal law by causing a disproportionate burden in areas with substantial racial or language minority populations.5
In New York state, primarily in Kings County (Brooklyn) but also elsewhere, names were purged from the rolls of Democratic party voters and in some cases party registration was switched without the voters’ knowledge or consent. In Brooklyn alone, over 60,000 Democratic voters’ names were purged from the voter rolls. An analysis done towards the end of June by public radio station WNYC showed that the purge, which took more than 120,000 voters off the rolls in New York City, had a disproportionate impact on residents with Hispanic surnames.6, 7
An example of the difficulties experienced in the New York primary were reflected in information provided before the election on the EJUSA web portal by Queens resident Alba Guerrero. She had registered to vote for the first time as a Democrat, and voted for Barack Obama in 2008. When she moved from Manhattan to Queens, she re-registered at the DMV. She checked on line over a month before the 2016 primary to be sure she was registered at her new address, but when she arrived at her polling place she was told she had been registered as a Republican since 2004. She sought out a judge, Ira Margulis, who said there was nothing he could do because the documents showed her to be a registered Republican. But then she saw the paperwork – the 2004 voter registration, while having her correct name, social security number and birthday, had someone else’s signature. She returned to the judge and pointed out the discrepancy. It was only due to her perseverance that she was finally allowed to vote in the Democratic primary.8
The wholesale purging of eligible voters and unauthorized registration switches formed the basis for litigation filed in Federal court on an emergency basis by EJUSA attorney Blaire Fellows.9 That lawsuit, brought before the primary was held, asserted that the purging procedure violated both the New York election law and the National Voters Rights Act (which allows a purge only after the Board of Elections sends a letter indicating the voter will be purged, the voter fails to return the letter and request continued party enrollment, and the voter does not vote in two general election cycles). Other claims centered on the deprivation of rights of minorities who were purged in Brooklyn, failing to register new voters who met the registration deadline, and improper party registration switches. But the lawsuit was not enough to halt the actions of the Board of Elections – the primary was held despite the overwhelming number of people who were denied the right to vote.
After the primary, New York Attorney Eric Schneiderman reported that his office received more than a thousand complaints from voters, which he described as “by far the largest volume of complaints” received for an election since he took office in 2011. In May the Attorney General opened an investigation into the matter, and the New York City Board of Elections has suspended two Brooklyn election officials pending their own internal investigation.10, 11
Efforts by Board of Election officials in Chicago to manipulate the early vote totals were cited in articles written by Doug Johnson Hatlem of EJUSA12 and in a recent lawsuit filed by attorneys Gregory E. Kulis and Joshua Patrick.13 The Illinois election code requires a test of the voting machines in 5% of the precincts, to be selected at random after election day in a manner which ensures that every precinct and every machine has an equal chance of being selected. If an errorless count cannot be conducted, a written report detailing the errors must be provided to the canvassing board.
Two citizen groups (Who’s Counting?-Chicago and the Illinois Ballot Integrity Project) monitored the vote and described multiple irregularities. These included listing the voting machine totals in bold next to the spaces provided for the audit results so that the desired outcome was readily apparent; failing to count numerous votes and altering the final tabulated vote so that the recount totals would equal the “official” results generated by the voting machines; changing votes from one candidate to another and adding or subtracting tallies from one candidate or another; and stopping the count once the “official” numbers were reached. To compound matters, the BOE employees participating in the audit actively prevented the monitors from observing and documenting these improprieties – their actions included bending or obscuring the tally sheets to shield them from the monitors’ view; physically preventing the monitors from watching the person performing the tallies; and stopping them from photographing or otherwise documenting the results.
The lawsuit, brought on behalf of voters and monitors, seeks class action status, a declaratory judgment, and an injunction. It charges that the actions of the BOE officials violated the fundamental right to vote because it deprived voters whose votes were changed or discarded of the right to cast a vote for the candidates of their choice. The complaint also states that the BOE’s actions deprived the monitors of their rights of freedom of association and to petition the government for a redress of grievances. The lawsuit charges that several of the monitors appeared at a BOE meeting in order to call the commissioners’ attention to their observations prior to certification of the primary results. Despite the fact that this was an open meeting purportedly subject to public comment, and that the monitors had an obligation to come forward with their findings, the monitors were prevented from speaking. Public comment was closed, the returns were certified, and the meeting was adjourned, all in less than two minutes.
As separately noted in Doug Hatlem’s reports, it also appears that the machines used in Chicago’s early voting process are among those that have consistently been panned over the years. In 2008 a team of scientists from the University of California Santa Barbara showed that these machines – the AVC Edge II Plus – could be hacked without breaking the security seals, and that the hack could be accomplished in a way that allowed the malicious code to spread to all other machines in a particular county. Eight years later, those easily hackable Edge machines are still counting votes in a wide variety of states and counties, including in the third largest city in the United States.
Attorney Bob Fitrakis has filed a lawsuit against Edison Media Research asserting that Democratic presidential candidate Bernie Sanders actually earned more pledged delegates in the primaries than were shown by the results.14 The suit seeks the release of raw exit polling data which documents dramatic differences between exit polls and electronic vote totals in eleven states in the 2016 presidential primaries. Exit polls have been adjusted to fit electronic vote totals since 2004, when they appeared to show Kerry winning against Bush. At that time, Karl Rove (then an assistant to George Bush) developed a theory to explain the alleged unreliability of exit polls. After citizens on the internet began to notice wide discrepancies in this election, the exit poll sponsors, The Media Consortium and Edison Media Research, canceled exit polls for all remaining states in the primary season. The lawsuit demands that media organizations release the raw data for the 2016 exit polls for the first time.
Procedural and other problems in California resulted in mass confusion even before the election was held, due to incorrect information, particularly affecting No Party Preference (NPP) voters, being disseminated by the Secretary of State.
About 10 days before the primary a lawsuit was filed by EJUSA attorney Bill Simpich on behalf of the Voting Rights Defense Project.15 This suit detailed the erroneous and misleading information being distributed by the Secretary of State regarding registration and vote by mail deadlines, the right to receive a regular Presidential ballot at the polling place, the right to be offered a regular ballot by poll workers when they arrive at the polls, and the right of the NPP voters to request a Presidential party ballot. The suit asked the court to direct that public service announcements be sent out statewide to inform voters of their rights, and that registration to vote be reopened until as late as Election Day in order to remedy the failures in registration caused by the errors committed by the Secretary of State and others statewide.
The plaintiffs’ requests were denied, with the judge saying that voters were smart enough to figure it all out. However, primary day revealed that there were, in fact, exactly the problems EJUSA had predicted. According to the L.A. Times,16 many polling sites had incomplete voter rolls, particularly in Los Angeles County. California voters reported showing up to their polling sites only to find that their names were not listed on the voting rolls. There were instances of supplemental rosters of new voters not getting to the polls on time. Other voters encountered broken machines and polling sites that opened late. The result was that all of these voters were given provisional ballots, which take longer to fill out, longer for election officials to verify, and which ultimately were not included in the manual tally required by law. Hundreds of Californians complained of voting problems to the national nonpartisan voter hotline run by the Lawyers’ Committee For Civil Rights Under Law. According to the Times, experts blamed the voting problems on a confluence of factors: old voting machines and a competitive election that had drawn new voters, combined with complex state voting laws that were hard for poll volunteers and voters to follow.
NBC also confirmed that the critics who predicted the California primary election would be confusing, specifically for the NPP voters, were right on point.17 Throughout the state, from Los Angles to San Jose to Antioch, countless voters complained of inept poll workers, many of whom did not know the proper information or protocol. While many counties in California instructed poll workers to present all NPP voters with menu cards to choose their ballots, Santa Clara County did not. NPP voters are allowed to vote Democrat, Green Party or Libertarian in a presidential primary, but the Santa Clara County poll worker instruction manual told election workers not to offer voters a crossover ballot unless they asked for one.
Despite all of the irregularities in the California primary, the election results were certified by the Secretary of State on July 15.
Under the Federal Voting Rights Act18 as it existed until recently, states and localities with a history of racial discrimination were required to obtain advance permission from the Federal government (called “preclearance”) if they wanted to change their voting laws, practices or procedures. Section 4(b) of the Act established a formula for determining if a jurisdiction would require preclearance, and Section 5 of the Act set forth the states (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia) and municipal entities within other states that had to get new voting laws pre-approved.19 A state or locality subject to preclearance had to demonstrate to the Justice Department that the new law or rule was not discriminatory before it could become effective.
In Shelby County vs. Holder20 these sections of the Voting Rights Act were challenged by Shelby County, Alabama, which claimed that the Act was unconstitutional because it required some, but not all, states and counties to obtain preclearance from the federal authorities. On June 25, 2013, the United States Supreme Court held that it was unconstitutional to use the coverage formula in Section 4(b) to determine which jurisdictions were subject to the preclearance requirements. It did not rule on Section 5, but even though this section still remains in force, it no longer covers any of the states and localities previously on the list. If Congress were to amend Section 4(b) with new criteria, the preclearance requirement could be enforced again.
Writing for the majority in a 5-4 decision, Chief Justice John Roberts held that the coverage formula was “based on decades-old data and eradicated practices”. He said that the formula captured states “by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s;” that literacy tests “have been banned nationwide for over 40 years;” and that “voter registration and turnout numbers in the covered states have risen dramatically in the years since.” He argued that whereas racial disparity had been “compelling evidence justifying the preclearance remedy and the coverage formula” when the Act was passed, there was no longer such a disparity. “In 1965, States can be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
In response, Justice Ruth Bader Ginsburg wrote a scathing dissent. She called the Voting Rights Act “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history”. Noting that in the majority’s view the very success of Section 5 “demands its dormancy,” she observed that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
The effects of the Shelby case on voting rights have been extensively examined. The NAACP Legal Defense and Educational Fund, Inc. (LDF) published a report entitled, Democracy Diminished: State and Local Threats to Voting Post-Shelby County, Alabama v. Holder, a detailed collection of state, county, and local voting changes during the years since the Supreme Court’s decision in Shelby County, Alabama v. Holder.21 The LDF observed that the preclearance provision has long been regarded as the most important means of protecting minority voters from voting discrimination, and it noted that common changes at the state or local level that potentially are discriminatory include: reducing the number of polling places, moving a polling place, changing or eliminating early voting days or hours, replacing district voting with at-large elections, implementing onerous registration qualifications like proof of citizenship, and removing qualified voters from registration lists.
Voting rights advocates say that statutes limiting early voting and registration, requiring voters to show photo ID, and purging voter rolls, still disproportionately burden minorities, the elderly, immigrants and the poor.22 Pro Publica has compiled statistics on an interactive map that tracks state voting laws before and after Shelby on four key issues: photo ID, early voting, same-day registration and voter roll purging.23 According to the Brennan Center for Justice, new restrictions in place for the first time in 2016 were enacted by all of the nine states previously on the Section 5 list except Alaska and Louisiana. New provisions include photo ID requirements (Alabama, Mississippi, South Carolina, Texas and Virginia) as well as other restrictions. Thus, in Arizona it is now a felony for someone other than a family member or postal worker to knowingly collect and turn in another voter’s completed ballot, even with that voter’s permission; and in Virginia there are limits on third-party voter registration (requiring groups receiving 25 or more registration forms to register with the state).24
Alabama and Georgia (which were subject to preclearance) and Kansas (which was not) have also enacted requirements for documentary proof of citizenship. Although this requirement was ruled illegal in Federal elections,25 the executive director of the U.S. Election Assistance Commission recently allowed these three states to require such proof when using the National Voter Registration form. A challenge to his action has been filed by the League of Women Voters, the ACLU and other organizations. Their request for a preliminary injunction was recently denied by U.S. District Judge Richard Leon, but the case will continue through the court system.26
The Brennan Center for Justice has also noted that states which did not require preclearance under the Voting Rights Act have passed restrictive laws as well. Many of these laws require that a voter produce photo ID in order to vote (Kansas, North Carolina, North Dakota, Tennessee, Wisconsin), although in some states (e.g., New Hampshire and Rhode Island) the new laws allow an affidavit alternative for voters who do not have photo ID. States also cut down significantly on early voting and same-day registration (North Carolina, Nebraska, Ohio, Tennessee, Wisconsin). And state legislatures dreamed up other laws to suppress the right to vote: for example, in Indiana, party-nominated election officers are now permitted to ask voters for additional proof of identification if they are not satisfied with what the voter has produced.27
Some of the problems in this year’s primaries in preclearance states cannot be directly traced to changes in the states’ laws, but rather to incompetence (or worse) by election officials. For example, there were complaints about ballots in Texas being changed by the voting machine in the Republican primary from Donald Trump to Marco Rubio28 and Democratic voters were given Republican ballots in Georgia29. An article in Think Progress analyzed the problems that voters were having in the Super Tuesday primaries. It noted that in Alabama the Secretary of State’s website, where voters should have been able to find their polling locations and times, was broken for several hours; and in Georgia malfunctioning poll books led to long wait times in some counties, and at least one poll worker was caught telling residents that non-English speakers were not allowed to vote.30
States not subject to preclearance also experienced numerous problems. In California, a lawsuit filed Election Justice USA charges that voters were not given proper ballots and that the ballots cast for the Democratic presidential candidates still have not been fully counted.31 Other problems in California included getting an email confirmation of being able to vote, only to arrive at the polling station and learn that the registration was not valid. Some people registered in one party found that their registration had been changed to another. In Washington, D.C. many voters reported their party affiliations mysteriously changed or dropped. And in Chicago, one person who was part of a group auditing the election wrote that he saw votes being erased for Bernie Sanders and added for Hillary Clinton in ledgers as they tallied votes that were being read out loud.32
In Nevada, there were hours-long lines, a lack of paper ballots, poorly trained elections workers, and charges of improper electioneering at some caucus sites.33 In Indiana, despite the anticipation of heavy turnout, some counties slashed the number of polling places.34 In Wisconsin, a new voter ID law requiring people to come to the polls with a photo ID that includes their signature caused long lines and confusion.35
But even though many of the difficulties encountered on primary day were unrelated to the Shelby decision, it is clear that the gutting of Section 4(b) was the direct cause of other problems that would have been avoided if a state or local government had been required to obtain preclearance because changes in the law could affect minority voting rights. Thus, in Texas, polling locations were consolidated at the last minute, and when combined with that state’s controversial voter ID law led to long lines and confusion that surely discouraged some people from voting. (The Texas voter ID law was struck down after the primaries by the Fifth Circuit Court of Appeals, a generally conservative court, which held that the law had a discriminatory effect on minorities,36 and hopefully it will not be an obstacle to voting in the November elections.) In Virginia there was uncertainty over what was required by a new voter ID law, and reports of voters being illegally denied provisional ballots.37 In North Carolina, which had 40 out of its 100 counties on the Section 5 list, there were also long lines and confusion attributed to the voter ID law.38
Municipalities in states that had been covered by the law significantly reduced the number of polling places. The most infamous example was the elimination of 140 out of 200 polling locations in Maricopa County, Arizona, where the evisceration of the Voting Rights Act was specifically blamed for the long lines and voters who simply gave up.39 And in Brooklyn, New York, which was one of the counties required by Section 5 to obtain preclearance, 122,000 so-called “inactive” voters were purged from the rolls of Democratic voters on primary day, including a disproportionate number of people with Hispanic surnames.40
The Shelby decision is certainly not responsible for every problem that occurred in the 2016 primaries, and it will not be responsible for each incident of voter disenfranchisement that will arise in the November election. But there is more than sufficient evidence and data to demonstrate that a preclearance requirement would have prevented many of the roadblocks to voting erected in states and localities formerly covered by Section 5.
9.Campanello v. NYS Board of Elections, et al., U.S.D.C., E.D.N.Y., Civ.16-01892.
13.Kerlin v. Chicago Board of Elections, et al., U.S.D.C., N.D. Ill., Civ.16-07424.
15.Voting Rights Defense Project, et al. v. Padilla, et al., U.S.D.C., N.D. Cal., Civ.16-02739.16.http://www.latimes.com/politics/la-pol-ca-voting-problems-20160607-snap-htmlstory.html
18. 42 U.S.C. § 1973 et.seq., now 52 U.S.C. § 10301 et seq.
19. For a complete list of the local governments covered, see: https://www.justice.gov/crt/jurisdictions-previously-covered-section-5
20. 133 S. Ct. 2612, 186 L.Ed.2d 651, 81 U.S.L.W. 4572 (2013) A thorough discussion of the effect of the Shelby case can be found on the website of the United States Department of Justice (Civil Rights Division) at https://www.justice.gov/crt/about-section-5-voting-rights-act.
22. See http://www.brennancenter.org/voting-restrictions-first-time-2016.
25. Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247, 186 L. Ed. 2d 239, 81 U.S.L.W. 4414 (2013)