Updated November 3, 2006. Nonprofits across the country are mobilizing to fight voter suppression efforts. Recently enacted state laws, one proposed regulation and a bill in Congress have united some nonprofits in an effort to curb government sponsored voter discrimination and suppression. Challenges brought by nonprofits have resulted in court victories, and decisions on proposed regulations are pending. These battles are being waged in a pivotal election year, amidst a backdrop of national efforts to curb voting registration, and a recent effort by some members of Congress to limit the reach of the landmark Voting Rights Act Reauthorization. This article provides a roundup of recent decisions and nonprofit efforts.

Note: Recent updates are indicated with a *.

Limits to Voter Registration Drives Struck Down, Challenged

Florida
On Aug. 28 a federal court in Florida handed down a decision that is good news for nonprofits that focus on voter registration. In the case, League of Women Voters v. Cobb, U.S. District Judge Patricia Seitz ruled that Florida officials could not enforce a recently passed Florida law that imposed stiff fines on non-profits that engage in voter registration drives in the state. The statute mandated that nonprofits pay penalties for late submission of voter registration documents. The nature of multiple voter registration drives taking place concurrently statewide created logistical problems that precluded groups from turning in the registrations within the mandated 10 day period.

As a result, groups such as the Florida League of Women Voters, the AFL-CIO, and American Federation of State and Municipal Employees had to discontinue their voter registration initiatives, dissuaded by the promise of crippling fines. The groups filed suit, expressing their dismay at the deleterious effect of the law on their voting operations, as well as the potential dents in their limited operating budgets. Another claim in the suit challenged the exclusion of political parties from the law’s requirements, in violation of the equal protection clause in the 14th amendment to the Constitution.

The Judge sided with the nonprofits, acknowledging at once the importance of nonprofit participation in the voter registration process and the unreasonable exclusion of political parties from the law's mandates. Judge Seitz wrote, "The Court finds that there is no appreciable difference in the timeliness of voter registration applications submitted by political parties, as compared to those submitted by non-partisan voter registration groups." To date the state of Florida has yet to appeal the decision.

In a press release from the Democracy Program at the Brennan Center for Justice at NYU School of Law plaintiffs' co-counsel Wendy Weiser said, "This decision could help head off comparable voter-suppression statutes in other states, such as Ohio, Georgia, New Mexico and Colorado.

Maryland *
On October 31, the Maryland State Board of Elections reached an agreement with voters' rights groups to support smooth elections on November 7. Maryland was the site of numerous accounts of voting problems during its September primaries. There has been a great deal of attention given to this state and its election woes, as Maryland is home to heated gubernatorial and senatorial contests. The agreement contains mandates aimed at ensuring that small technical errors, such as a typo on a voter registration form, would not preclude residents from voting. According to the terms of the deal, the voters rights groups forgo any litigation in exchange for the corrective measures laid out by the Board.

Ohio
An Ohio court struck down a similar law four days after the Florida decision. The plaintiffs in the Ohio case, Project Vote v. Blackwell, were a group of nonpartisan organizations, including Project Vote, People for the American Way Foundation, and Common Cause Ohio. The Ohio law would have required all voting registrars to complete an online training course, in addition to imposing criminal penalties for those who turned in voter registrations by proxy.

The defendant in the Project Vote case, Secretary of State and Republican gubernatorial candidate Kenneth Blackwell, has been getting sued frequently this election year. In a pending suit, the plaintiffs are the Association of Community Organizations for Reform Now (ACORN) and two public assistance recipients from Ohio. The suit alleges that Blackwell has failed to comply with the National Voter Registration Act, which requires the state to register low income voters in public assistance offices. In a press release Jon Greenbaum, Director of the Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law , said,"After repeated notifications, the state has not remedied this clear-cut violation of the law. We therefore had no choice but to ask the federal court to do so." The complaint also says Blackwell has provided scant resources for low income voter registration efforts, and notes that in some lower income counties, no new voters have been added to the rolls, and in others, fewer than 10 people have been added.

New Jersey
In New Jersey, a proposed rule seeks to accomplish similar ends as the Ohio and Florida laws. It would restrict third party voter registration carried out by nonprofits by requiring that the registrations be turned in no later than five days after their collection. The Brennan Center for Justice, in New York, has submitted comments to New Jersey officials, encouraging them not to enforce the rule. The Brennan Center attorneys make their point in succinct, pointed language. "Restricting third party voter registration will ultimately have a detrimental effect on New Jersey's citizens, who will have fewer opportunities to register to vote. We recommend that you withdraw the proposed rule."

Voter ID Requirements: Barriers Challenged, Some Struck Down

Arizona
On October 5, the Ninth Circuit Court of Appeals ordered the state of Arizona to not enforce a recent law that would have required citizens to show proof of citizenship in order to register to vote. Arizona Secretary of State Jan Brewer responded to the decision with expected dismay. "I'm very concerned about the confusion that this potentially will create in the upcoming election." She had previously contended that the measure was necessary to combat voter fraud. Arizona Attorney General Terry Goddard is planning to appeal directly to Supreme Court Justice Anthony Kennedy to void the Ninth Circuit's ruling. Justice Kennedy has the authority to void rulings on an emergency basis.

THIS JUST IN: Supreme Court Vacates 9th Circuit Ban On October 20, the U.S. Supreme court vacated the Ninth Circuit's decision. The election will now proceed according to the passed law. Citizens will still be required to show proof of citizenship. The court did not express an opinion as to what it thought the proper outcome was. Instead, the court noted the contentious nature of the issue, and cited the lack of the ultimate determination of facts as a reason for remanding the case. The court suggested that the Ninth Circuit court may have acted too quickly, aware that an election was forthcoming, causing it to make a decision without a full explanation of its reasoning. "There has been no explanation given by the Court of Appeals showing the ruling and findings of the District Court to be incorrect." Secretary of State Brewer praised the Supreme Court for ruling "in favor of the people." Opponents of the law do find a silver lining in the decision. If disenfranchisement takes place on Election Day, it will likely be documented. Once documented, these incidents of disenfranchisement can be used as evidence that the law does have a restrictive impact on the fundamental right to vote, which can be used in any case that may result. This is not likely to be the last we hear of Arizona's voter ID law. Read about this case here.

Georgia
Opponents of a law that would have required voters to produce identification at the polls in Georgia won the battle to block enforcement of the law. The proposed law would have reduced the list of permissible forms of identification from 17 to 6. In a Fulton County Superior Court, Judge T. Jackson Bedford reasoned that "any attempt by the Legislature to require more than what is required by the express language of our Constitution cannot withstand judicial scrutiny." Republican proponents of the law, including Georgia Governor Sonny Perdue, claim that the measure would have prevented voter fraud. Opponents argue that the law is burdensome to poor voters. This decision is the latest in a series of court battles over the law. Recent court decisions have blocked its enforcement because it was to be implemented too soon with too little voter education as to its effects. Back in July, U.S. District Court Judge Harold Murphy blocked the law's enforcement because the law had only been approved in June. Recently, some opponents of the law sought to hold the state in contempt for sending out 200,000 letters informing citizens that they would be required to show the identifications. This mass mailing took place after the most recent court decision. The contempt charge has since been dropped. At least for this year's election in November, it will be business as usual for the Georgia voter.

New Mexico
Another voter identification suit is in the works in Albuquerque, New Mexico. The Brennan Center for Justice has filed an amicus brief in a suit brought by the New Mexico ACLU challenging a New Mexico law requiring identification as a condition of voting. This suit is just the latest of many like it nationwide.

Ohio*
Another voter suppression issue has arisen in Ohio. In August a group of naturalized citizens represented by the ACLU, the Brennan Center and other voting rights attorneys filed suit against Ohio Secretary of State Kenneth Blackwell. The plaintiffs challenged a provision of a recently passed bill that allows poll workers to request that voters produce documentation proving their U.S. citizenship. They asked the court for an injunction to prevent Mr. Blackwell from enforcing the law, as well as for a statement from the court that the law is unconstitutional. The citizens contended that the new law was unfair and discriminatory, pointing out that it did not require other citizens to produce such documentation. On October 4, 2006, the plaintiffs achieved a victory for naturalized citizens in Ohio. The judge in the case saw the unequal treatment of naturalized Americans as unconstitutional, and ordered the state to not comply with the law. Read the court order here. On October 24, another Ohio suit developed. The Northeast Ohio Coalition for the Homeless and Service Employees International Union Local 1119 filed the lawsuit, alleging that the application of the voter ID law has already begun to be applied inconsistently. The complaint alleges that the Secretary of State has failed to administer proper guidance to local election officials, and that these inconsistencies may well lead to problems with the forthcoming election.

THIS JUST IN:On October 27, a federal judge granted a temporary restraining order to the plaintiffs against the state. Judge Algenon Marbley agreed with the plaintiffs that the application of the voter ID rule was not uniform, and that confusion would ensue should the law be allowed to remain in effect. The case took another turn on Sunday October 29, when a federal appellate court vacated the restraining order, effectively ensuring that the law will be applied to voters for next Tuesday's election. The 6th Circuit Judge reasoned that the plaintiffs' claims of confusion and vagueness in applicability was "unsubstantiated and too speculative to be cognizable." She continued her opinion by relying heavily on the recent Supreme Court ruling in Purcell v. Gonzales, in which an Arizona voter ID law was upheld. "As the Supreme Court recently recognized, court orders affecting elections can themselves result in voter confusion and cause the very chilling effect the plaintiffs claim they seek to avoid." Read the opinion here. Lawyers for the plaintiffs have promised to appeal this decision to the Supreme Court, as they claim that this action ensures that confusion will ensue and that votes will not be counted. A spokesman for Ohio Attorney General Jim Petro, who intervened in this case on behalf of the state, said, "We want to work with the plaintiffs to identify how to ensure the smoothest election but at the same time protect against voter fraud." There is sure to be more action in this case, as election season draws to a close.

ANOTHER UPDATE On November 1, a federal judge laid out clear rules for the upcoming election in Ohio. This came after a volatile and confusing series of court decisions preceding this one. Both parties claimed victory at the decision, which allows people to cast provisional ballots, even without an ID, but does not go so far as to invalidate the contested law. The ruling was a result of 13 hours of negotiations. The court's decision does not apply to any other elections but this one, and it did not go so far as to call the law in question unconstitutional. The court ruled that all county boards of election must count absentee or provisional ballot with a voter's name, address, date of birth, and signature, even absent the provision of a driver's license number or the other forms of ID the law would have required. Those actually present at the polls will be allowed to cast provisional ballots if they don't have ID's. The provisional ballots will be counted if they meet various requirements such as verification of address with state voter rolls. For more on this decision, click here.

Missouri*
In Missouri, a state judge recently sided with the state on a similar issue, even while acknowledging the potential high cost of compliance with the law by several voters. According to an article in STLtoday.com, the judge decided that the state legislature did not unfairly discriminate against "certain groups such as African Americans by requiring IDs to vote." The plaintiffs in the case contended that the law posed an undue burden on the fundamental right to vote. The judge sided with the state, reasoning that the state had a right to try to prevent election fraud by enacting the measure.

THIS JUST IN!-Missouri Supreme Court Invalidates Voter ID Law.

On October 16, the Missouri Supreme Court struck down the Missouri statute as unconstitutional. The court reasoned that there was no demonstrated evidence of voter fraud of the like that a mandated presentation of an ID would remedy. The Missouri state legislature is currently investigating methods to amend the statute to keep the ID presentation without violating the court's ruling. Missouri continues to be a source of election drama. In late October, the St. Louis Election Board sent out thousands of letters asking voters to further update their registrations in order to be able to vote. The board insists that there will be a smooth election in which every possible vote will be counted. Critics contend that this measure will intimidate possible voters and will likely keep many from the polls. Stay tuned, because some of those critics have hinted at legal action on this matter.

Washington
A federal court in Seattle struck another victorious blow for voting rights in August. Plaintiffs included the Association of Community Organizations for Reform Now (ACORN), Service Employees International Union, Washington Citizens Action, and the Washington Association of Churches. In the case, Washington Association of Churches v. Reed, the judge's decision blocked enforcement of a state law that would have kept citizens from voting if their identification information did not match government databases exactly. This would have kept otherwise eligible voters off of voter rolls if there had been even a minor typographical error. The judge in this case was unequivocal. "The Court does not consider a person's right to vote a mere 'detail' to be so easily dismissed. The public interest weighs strongly in favor of letting every eligible resident of Washington register and cast a vote."

Voter Assistance

Texas Voter Fraud Law Challenged For Possible Racial Bias A 2003 Texas law made it a crime to turn in other voters' absentee ballots. Since its passage, the law has been a source of significant controversy in Texas. Proponents claim that it exists to prevent election fraud by heavy handed operatives who trick seniors into voting one way or another. Opponents argue that the law discourages voter assistance and imposes too stiff a penalty for an activity that is legitimate. Opponents include groups such as the Mexican American Legal Defense and Educational Fund and the Texas NAACP. These groups contend that it is a common practice for the elderly to vote absentee and designate a person or persons to turn in the ballots for them, avoiding intimidation at the polls. The Texas Attorney General's office has been strictly enforcing the law, and is alleged to use intimidating tactics in investigations. In one report, an elderly black woman stepped out of her bath, only to see two state officials staring into her bathroom window.

These events have led to a lawsuit filed by a few minority voters in conjunction with the Texas Democratic Party. The state of Texas, its Attorney General, and its Secretary of State have been named as defendants in the case. The plaintiffs claim that the statute violates the U.S. Constitution and the Voting Rights Act, and targets minorities unfairly. The suit came after the Lone Star Project published a report on voter suppression tactics employed by state Attorney General Greg Abbott.

This Just In: On November 3, a federal court granted a stay a lower court's preliminary injunction ruling against Attorney General Abbott. As it stands now, the state will continue to be allowed to prosecute third parties who assist others in the act of voting. This decision comes hot on the heels of a federal district court decision earlier this week. On October 31, a federal district judge ordered Attorney General Abbott to stop prosecuting Texas citizens who help their elderly and disabled neighbors to vote. This decision brought elation to the plaintiffs, who believed that the prosecutions are directed at minority voters in an effort to intimidate. Now it remains to be seen if some kind of agreement can be reached before election day, now less than four days away.

Congress

House Passes Legislation that Requires Proof of Citizenship to Vote
On September 20, 2006 the U.S. House of Representatives passed a bill that would require voters to present proof of U.S. citizenship at the polls. This requirement would keep many previously accepted forms of voter identification from being used. A driver's license would no longer be good enough, as in many states they can be granted absent U.S. citizenship. The Republican sponsors of the bill claim this measure is necessary to prevent voter fraud. The mostly Democratic opponents view this as a voter suppression tactic. Democrats say that there is little evidence of the voter fraud that this measure is supposed to remedy.

While the jury is out on the actual level of voter fraud across the nation, a May, 2006 report by the U.S. Election Assistance Commission hints that some of the fear has been inflated. The report acknowledges that disagreements exist in the fraud conversation, but concludes, "On balance, more researchers find it to be less of a problem than is commonly described in the political debate."

The bill's passage comes at a time when voting rights across the country are being attacked. The bill relates to two hot button topics on the hill this past summer, voting rights and immigration. The measure has yet to be considered by the Senate, and Senate Democrats vow to use all tools available to them to keep the measure from coming to a vote before the recess. There are threats of filibuster in the air as Democrats believe that there are already measures in existence to combat voter fraud. The legislation is unlikely to take effect for this upcoming election cycle. Stay tuned.

House Considers Bill Requiring Paper Trail for Votes
The House Administration Committee held a hearing on Sept. 28, 2006 to discuss the possibility of a required voter verified paper audit trail for all electronic voting machines. At the hearing a scientist demonstrated the ease with which a voting machine can be tampered with to change the outcome. Critics of the proposed measure voiced their concern that a paper trail could create disenfranchisement issues as well, with lost or damaged rolls resulting in lost votes. Rush Holt (R-NJ), the sponsor of the legislation (H.R. 550) said that he hopes that election officials pay close attention to some of the recent problems posed by voting machines and act accordingly to prevent more mishaps.

Partisan Gerrymandering Struck Down

South Dakota
On Aug. 22 a federal court in South Dakota upheld a lower court's ruling that Native American plans for redistricting were fair and appropriate.(Bone Shirt et al. v. Hazeltine). The controversy began when the state legislature gerrymandered districts in such a way that Native Americans were squeezed out of influence in a particular area that they felt they should retain. A lower court, having given the state the opportunity to offer new plans, sided with the Native Americans' version of the new districts, after the state failed to produce anything at all.

This is an encouraging development for historically disenfranchised groups, in light of a recent Supreme Court decision. The court ruled that some Texas redistricting done in 2003 was constitutional, even if it resulted in strongly favoring one party over another. This gerrymandered area of Travis County, Texas had disgraced House Whip Tom Delay's finger prints all over it.

Connecting the Dots: Pattern of Voter Suppression Efforts Emerging*

A recent Mother Jones article has many more examples of voter suppression and fraud efforts. Among the more disturbing events in the expose is a new form of an illegal poll tax in Georgia. The state legislature required all voters to first purchase official government ID's at a cost of between $20 and $35 from Department of Motor Vehicles offices, many of which are inaccessible to the poorest of Georgia citizens. Another unsettling anecdote comes courtesy of voting machine manufacturer Diebold. In one instance, a counting machine "showed 150,000 voted being tabulated in a county where only about 50,000 people voted." Also, an October 30 article on Tom Paine.com reveals the appalling level of state support for registration of lower income voters.

The past few years have seen a resurgence of efforts to protect voting rights. In this election year, the pertinence of this matter is lost on none. There is also an unnerving trend emerging to further regulate or scale back voting protections. This past summer, a group of Republican lawmakers held up the passage of the landmark Voting Rights Act Reauthorization. It was eventually passed, but not before an attempt to limit its scope and protections was made. Under these conditions, nonprofits must pay special attention to cases such as the one in Florida, New Jersey, Washington, and Ohio. Hopefully, the non profit voter registration and rights victories will serve as guideposts for other judges and legislators in deciding these important issues.