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North Carolina v NAACP SCOTUS 16-833

North Carolina v NAACP SCOTUS 16-833

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No. 16-833 THE
Supreme Court the United States
_________
STATE NORTH CAROLINA, AL.,
Petitioners,
NORTH CAROLINA STATE CONFERENCE THE
NAACP, AL.,
Respondents.
_________ Petition for Writ Certiorari the United
States Court Appeals for the Fourth Circuit
_________
MOTION FOR LEAVE FILE AMICUS BRIEF
AND BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT PETITIONERS
_________ Christopher Coates
LAW OFFICE CHRISTOPHER COATES
934 Compass Point
Charleston, 29412
Chris Fedeli
Lauren Burke
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
lburke@judicialwatch.org
Counsel for Amici Curiae
Dated: January 26, 2017
MOTION FOR LEAVE FILE
AMICUS BRIEF
Amici Curiae Judicial Watch, Inc. and the Allied
Educational Foundation respectfully request leave
file amicus brief support Appellants
Application for relief under Supreme Court Rule North Carolina State Conference the NAACP,
al., McCrory, al., C.A. No. 16-1468 (4th Cir.).
Amici notified counsel and requested consent from
counsel record for all parties. Petitioners and
League Women Voters Respondents have given
their consent. However, the date this filing,
the other Respondents have not answered amici
request for consent. Accordingly, amici move for
leave file the attached brief.
The issues this case are important the
nation and amici. The Fourth Circuit erred
allowing the racially disproportionate use
particular electoral procedures count evidence electoral harm whenever those procedures are
any way altered. the same time, the Fourth
Circuit dismissed evidence that was far more
probative
true
electoral
advantage
disadvantage,
namely,
evidence
concerning
registration and turnout African American voters
under the challenged voting procedures.
Amici are principally concerned that the Fourth
Circuit decision will subject state laws regarding
electoral procedures unremitting attacks the
grounds that one another statistical analyses
shows disproportionate racial use such
procedures, even where this has effect the true
electoral power racial groups indeed, perversely,
even where this effect positive. The consequences this new electoral dynamic, the extent that they
can foreseen, are all bad. practical matter,
every change state electoral law will subject serious and viable challenge. State electoral law
will become largely federal matter,
determined and approved federal court. Even
more disturbing, because this massive distortion
our political system relies the wrong evidence
electoral harm, ultimately may injure the minority
voters was meant help.
For these reasons, amici respectfully request that
this Court grant leave file this brief.
Respectfully submitted, Christopher Coates
LAW OFFICE CHRISTOPHER COATES
934 Compass Point
Charleston, 29412
Chris Fedeli
Lauren Burke
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
lburke@judicialwatch.org
Counsel for Amici Curiae
January 26, 2017
iii
TABLE CONTENTS
MOTION FOR LEAVE FILE AMICUS BRIEF...
TABLE AUTHORITIES .....................................
INTERESTS THE AMICI CURIAE .....................1
SUMMARY ARGUMENT.....................................2
ARGUMENT ...............................................................3
THE FOURTH CIRCUIT ERRED BECAUSE ITS
FINDING DISCRIMINATORY INTENT WAS
NOT ACCOMPANIED THE REQUIRED
FINDING TRUE DISCRIMINATORY
EFFECT. .....................................................................3 Establish Intentional Discrimination
Under Either the Equal Protection Clause
the Voting Rights Act, Plaintiff Must Prove
Both Discriminatory Purpose and
Discriminatory Effect. ......................................3
II.
The Fourth Circuit Erred Treating
Statistical Disparities Regarding the Use
Electoral Procedures Proof
Discriminatory Effect. ......................................5
III.
The Fourth Circuit Error Highlights
Unresolved Split Between Circuits Regarding
the Kind Evidence Necessary Show
Discriminatory Effect.........................................
CONCLUSION ..........................................................20
TABLE AUTHORITIES
CASES
Brooks Miller, 158 F.3d 1230 (11th Cir. 1998) .......5
Crawford al. Marion County Election Board,
553 U.S. 181 (2008).............................................17
Davis Bandemer, 478 U.S. 109 (1986) ............3,
Frank Walker,
768 F.3d 744 (7th Cir. 2014) ........................16,
Gonzalez Arizona,
677 F.3d 383 (9th Cir. 2012), aff sub nom.
Arizona Inter Tribal Council Arizona, Inc.,
133 Ct. 2247 (2013)...................................17,
Hunter Underwood, 471 U.S. 222 (1985) ...........4,
Johnson DeSoto County Board Commissioners, F.3d 1556 (11th Cir. 1996)...............................5
Johnson DeSoto County Board Commissioners,
204 F.3d 1335 (11th Cir. 2000) ............................5
North Carolina State Conf. the NAACP
McCrory, 831 F.3d 204 (4th Cir. 2016) ...... passim
North Carolina State Conf. the NAACP
McCrory, Case No. 1:13CV658
(M.D.N.C. 2016) ..................................................11
Ohio Democratic Party Husted,
834 F.3d 620 (6th Cir. 2016) ..............................18
Personnel Administrator Mass. Feeney,
442 U.S. 256 (1979).......................................4,
Reno Bossier Parish School Board,
528 U.S. 320 (2000)...............................................4
Shelby County Holder,
133 Ct. 2612 (2013)...........................................9
Smith Salt River Project Agric. Improvement
Power Dist., 109 F.3d 586
(9th Cir. 1997) ............................................... 17-18
Veasey Abbott, 830 F.3d 216 (5th Cir. 2016),
(en banc), cert. den. sub nom.
Abbott Veasey, 2017 U.S. LEXIS 789
(Jan. 23, 2017)...............................................15,
Village Arlington Heights Metropolitan Housing
Development Corp,
429 U.S. 252 (1977).........................................6,
Washington Davis, 426 U.S. 229 (1976) .................4
STATUTES U.S.C. 10301(b) ....................................................9 U.S.C. 10309 ......................................................10
OTHER AUTHORITIES
Barry Burden, David Canon, Kenneth
Mayer Donald Moynihan,
Election Laws, Mobilization, and Turnout: The
Unanticipated Consequences Election Reform, AM. POL. SCI. (2014) ..............................13
General Accounting Office,
Elections: Issues Related Registering Voters
and Administering Elections, June 2016,
available
http://www.gao.gov/assets/680/678131.
pdf ..................................................................11,
INTERESTS THE AMICI CURIAE1
Judicial Watch, Inc. Judicial Watch nonpartisan educational foundation that seeks
promote transparency, integrity, and accountability government and fidelity the rule law.
Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and
has appeared amicus curiae this Court
many occasions.
The Allied Educational Foundation AEF
nonprofit charitable and educational foundation
based Englewood, New Jersey. Founded 1964,
AEF dedicated promoting education diverse
areas study. AEF regularly files amicus curiae
briefs means advance its purpose and has
appeared amicus curiae this Court many
occasions.
Amici believe that the decision the U.S. Court Appeals for the Fourth Circuit, allowed stand,
will enshrine new standard proof, which does
not require adequate showing discriminatory
effect, establish violation Section the
Voting Rights Act and the Fourteenth
Amendment.
The Fourth Circuit approach
contrary the Court precedents and threatens
great harm. Amici state that counsel for party this case authored
this brief whole part; and person entity, other
than amici and their counsel, made monetary contribution
intended fund the preparation and submission this brief.
For these and other reasons set forth below,
amici urge the Court grant the pending petition
for certiorari.
SUMMARY ARGUMENT
Plaintiffs claiming intentional discrimination
violation the Fourteenth Amendment and Section the Voting Rights Act must allege and prove
both discriminatory purpose and discriminatory
effect. The Fourth Circuit erred allowing the
wrong kind evidence establish the necessary
discriminatory effect. Its decision relied the fact
that
particular
electoral
procedures
were
disproportionately used African Americans
conclude that the alteration repeal those
procedures injured African American voters. The
Fourth Circuit compounded this error giving
weight evidence showing that African American
registration and turnout, which ought the true
measures electoral participation and power, were
not diminished any the challenged voting
procedures. allowed stand, the Fourth Circuit decision
will cause great harm. Every election law would
subject viable challenge. States would well
advised simply avoid changing such laws, and
electoral procedure would, practice, become
matter for the federal courts. Even worse, using
criteria that are only accidentally related true
electoral power judge electoral procedures will
lead outcomes that are arbitrary, even
perverse, insofar they
participation elections.
decrease
minority
The Fourth Circuit decision not the first
address the issue how establish discriminatory
effect. Several courts appeal have considered the
matter, and their decisions plainly conflict. The
Court should grant the petition for certiorari
order resolve pronounced split between courts
appeal regarding this issue.
ARGUMENT
THE FOURTH CIRCUIT ERRED BECAUSE ITS
FINDING DISCRIMINATORY INTENT WAS
NOT ACCOMPANIED THE REQUIRED
FINDING TRUE DISCRIMINATORY
EFFECT. Establish Intentional Discrimination
Under Either the Equal Protection Clause the Voting Rights Act, Plaintiff Must
Prove Both Discriminatory Purpose and
Discriminatory Effect. cases which parties claim that they have
been subjected intentional acts
unlawful
discrimination that violate the Equal Protection
Clause, plaintiffs must prove not only that the
challenged action was taken with discriminatory
purpose, but also that the challenged action has
actual discriminatory effect that group. Davis
Bandemer, 478 U.S. 109, 127 (1986) (citation
omitted) (applying this two-prong purpose and effect
test Fourteenth Amendment intent claim
challenging Indiana legislative reapportionment). Bandemer, this Court emphasized that
constitutional
intent
claim
requires
both
discriminatory purpose and real and actual
discriminatory effect.
Id. 133 equal
protection violation may found only where the
electoral system substantially disadvantages certain
voters Further, this Court made clear that the
evidence discriminatory effect intent claims had showing more than minimis [adverse]
effect. Id. 134.
Both before and after the ruling Davis, this
Court has applied this two-prong test
discriminatory intent cases brought constitutional
grounds. See e.g., Personnel Administrator Mass. Feeney, 442 U.S. 256, 272, 274 (1979) (both
discriminatory purpose and effect must shown
prove claim under the Equal Protection Clause
alleging
gender
discrimination);
Hunter
Underwood, 471 U.S. 222, 232 (1985) (in
Fourteenth Amendment challenge voting
disenfranchisement
statute
where
both
impermissible racial motivation and racially
discriminatory impact are demonstrated, the
constitutional intent standard was satisfied); and
Reno Bossier Parish School Board, 528 U.S. 320,
337 (2000) discriminatory purpose well
discriminatory effect [is] necessary for
constitutional violation, citing Washington Davis,
426 U.S. 229, 238-245 (1976)). addition, courts appeal have required both
purpose and effect establish claims intentional
discrimination under Section the Voting Rights
Act. See e.g., Johnson DeSoto County Board
Commissioners, F.3d 1556, 1561 (11th Cir. 1996);
and Johnson DeSoto County Board
Commissioners, 204 F.3d 1335, 1344 n.18, 1345-46
(11th Cir. 2000) (DeSoto County II) (in the context intent claim under the Constitution and Section
against at-large districts, the government
discriminatory intent alone, without causal
connection between the intent and some cognizable
injury Plaintiffs, cannot entitle Plaintiffs
relief, citing Feeney, 442 U.S. 272); Brooks
Miller, 158 F.3d 1230, 1237 (11th Cir. 1998)
(discriminatory intent claim challenging majority
vote requirement rejected because the majority vote
law does not have discriminatory effect black
candidates
II.
The Fourth Circuit Erred Treating
Statistical Disparities Regarding the Use Electoral Procedures Proof
Discriminatory Effect.
Under both the Fourteenth Amendment and
Section the Voting Rights Act, intent claim
requires plaintiff prove actual discriminatory
effect that caused the enforcement the
challenged provision. The Fourth Circuit implicitly
acknowledged this requirement. But erred, both discounting strong evidence showing that there
was discriminatory impact and relying the
wrong kind evidence show such impact.
The Fourth Circuit pointed the fact that
African
Americans
North
Carolina
disproportionately lacked the most common kind
photo ID, which driver license issued the
DMV. North Carolina State Conf. the NAACP
McCrory, 831 F.3d 204, 216 (4th Cir. 2016). The
Court also highlighted the district court findings
that the other challenged voting provisions (the
reduction the early-voting period, the abolition
same-day-registration, the ability cast ballots out voter precinct, and the use pre-registration
for and 17-year-olds) were used African
American voters higher rate than they were
used white voters. Id. 216-18, 230. The Fourth
Circuit opinion then went say that, the
district court findings that African Americans
disproportionately used each the removed
mechanisms, well disproportionately lacked
the photo establishes sufficient
disproportionate impact for Arlington Heights
analysis. Id. 231.
There are several problems with this analysis. begin with, the portion its opinion that
purports address the question what impact the
enforcement 2013-381 has, the Fourth Circuit
relies primarily for guidance Village Arlington
Heights Metropolitan Housing Development Corp,
429 U.S. 252 (1977). Id. 230, 232-33. But the
portion Arlington Heights cited the Fourth
Circuit discussion the various kinds
circumstantial evidence from which court might
infer discriminatory purpose. Id. 220-221, citing 429
U.S. 266. This discussion Arlington Heights
not specifically directed the analysis necessary
discriminatory intent cases, where the court must
look see enforcement the challenged
provision, addition having been enacted with
invidious purpose, actually has racially
discriminatory effect. See Davis, 478 U.S. 127;
Feeney, 442 U.S. 272, 274; Hunter, 471 U.S.
232.
More basically, the Court was looking the
wrong place for evidence relevant discriminatory
impact. erred failing accord proper weight
two vital electoral effects: minority registration and
turnout. answer the question whether there discriminatory effect, necessary look
African Americans voter participation rates
elections both before and after the challenged
provisions 2013-381 went into effect.
Statistical evidence this kind was offered into
evidence Petitioners rebut claims
Respondents that enforcement some the
provisions2 2013-381 has discriminatory
effect. That evidence showed, noted the Fourth
Unlike the four other challenged provisions 2013-381
that were enforced the 2014 midterms, the record does not
contain evidence what effect enforcement the photo had
upon African American voter participation, because the photo was not enforced until the March 2016 and June 2016 North
Carolina primaries. Id. 242 (Motz, Circuit Judge,
dissenting). Judge Motz noted, [t]he record, however,
contains evidence how the amended voter
requirement affected voting North Carolina. Id. Since the
burden proof this case the Respondents, this dearth evidence this essential element the intent claim
challenging the photo again demonstrates that the district
court was correct granting judgment Petitioner.
Circuit, that black voter aggregate turnout
increased 1.8% the 2014 midterm election
compared the 2010 midterm election. Id. 232.3
Strangely, however, the Court Appeals responded this highly probative evidence concerning what,
any, racially discriminatory effect was caused
implementation four the challenged voting
provisions stating that
The district court also erred suggesting
that Plaintiffs had prove that the
challenged provisions prevented African
Americans from voting the same levels
they had the past. law implicated
here neither the Fourteenth Amendment
nor Section requires such onerous
showing.
Id. (emphasis added). The Fourth Circuit added that
the district court consideration the turnout
evidence before and after the implementation
2013-381 was beyond the scope disproportionate
impact analysis. Id.4
This comparison took into account midterm elections 2010
and 2014. 2010, the period for early voting was days
longer than 2014. 2010, person could register and vote the same day where such practice was not available
2014. 2010, voter ballot was counted the races
which the voter was eligible vote even the ballot were cast the wrong precinct, which was not the case 2014. Further, 2010 pre-registration activities were on-going where those
activities had been discontinued 2014. Notwithstanding
these changes, the rate the aggregate black voter turnout
was higher 2014 than 2010.
The Fourth Circuit slighting crucial
participation evidence such turnout and
registration, and its emphasis instead whether
minority voters used the four disputed voting
procedures higher rates, clearly wrong. Indeed,
amici respectfully submit that the Fourth Circuit
has exactly backwards. The rate which voters
register and turn out vote the true measure
whether there discriminatory effect. Registration
and voting ultimately determine the extent which
the voters are able participate the political
process and elect representatives their choice. U.S.C. 10301(b).5 The fact that minority voters
The evidence comparing the black turnout the 2010 and
2014 midterm elections was introduced Petitioners way rebut Respondents allegations that four provisions
2013-381 constituted intentional racial discrimination. The
Fourth Circuit criticized the use data from those elections,
stating that courts should not place much evidentiary weight any one election (there were actually two elections involved the comparison), and that fewer citizens vote midterm
elections. Id. (citations omitted). But assuming all that correct, does not inure the benefit Respondents.
was the Respondents who had the burden proving that
enforcement 2013-381 provisions are having actual
discriminatory effect upon African American voters. the only
evidence the discriminatory effect/turnout issue before the
district court was not reliable, the Fourth Circuit concluded,
then that circumstance indicates that Respondents did not
carry their burden proving discriminatory effect support
their discriminatory intent claim.
The Voting Rights Act has always reflected the same
practical approach voting power. For example, minority
voter registration was key part the Act trigger for
determining whether states were covered its preclearance
requirements. See Shelby County Holder, 133 Ct. 2612,
2619-20 (2013). And improvement minority registration
prefer particular voting practice only relevant
insofar affects the more important issue
whether those voters will actually register vote and
show the polls. hypothetical will prove this. First suppose,
the district court found here, that African American
voters disproportionately prefer particular voting
practices such voting without ID, early voting,
same-day registration, and out-of-precinct voting.
Now suppose that were established beyond all
doubt that one more the practices that minority
voters prefer resulted lower minority registration
and turnout. (As will become clear this not idle
speculation.) those circumstances, would the
State elimination such practices still constitute
violation the Equal Protection Clause Section the Voting Rights Act? According the Fourth
Circuit logic, would, because the Court more
concerned with minority voters preference for
electoral practice than with the actual effect that
such practice has electoral outcomes.
Yet this makes sense. federal voting law
intended ensure minority participation
elections should not applied way that lowers
it. Indeed, take the hypothetical step further,
suppose that minority plaintiffs sued enjoin
electoral practice that minority voters admittedly
preferred, the stated ground that the practice
demonstrably and predictably leads lower
minority participation elections. The Fourth still statutory factor assessing whether terminate the
use federal observers. U.S.C. 10309.
Circuit reasoning provides principled way
decide which set plaintiffs should prevail, those
the instant case, those this hypothetical.
This issue not just hypothetical. The evidence
offered trial showed that minority turnout and
registration actually increased North Carolina
after the implementation 2013-381.6 Indeed,
with respect early voting particular there
growing body evidence suggesting that
associated with lower turnout. June 2016, the
General Accounting Office (GAO) issued report
online which gathered and presented the
conclusions scores studies concerning number different electoral reforms. With regard early
voting, the report states: reviewed studies from
publications, and these studies had varied
findings.
Seven
studies
found
The Fourth Circuit attempted discount this evidence
arguing that the increase minority turnout actually
represents significant decrease the rate change. 831
F.3d 232. Aside from the fact that the law does not require
perpetual increases minority turnout, let alone its rate,
and that perpetual increases such rate are unlikely, and
even become impossible the limit 100% approached, the
Fourth Circuit simply ignored the district court finding, based testimony from Respondents experts, that African American
registration North Carolina has reached 95.3%, and that
[t]he registration rate African Americans has surged
North Carolina since 2000, the point that the registration
rate African Americans now exceeds that whites. North
Carolina State Conf. the NAACP McCrory, Case No.
1:13CV658 (M.D.N.C. 2016), ECF No. 184 n.30.
statistically significant effect, another
studies found that the policy decreased
turnout, and studies reported mixed
evidence. Reported effects from these
studies ranged from 3.8 percentage point
decrease turnout 3.1 percentage
point increase.7
The GAO observed that one study found some
evidence that early in-person voting decreased
turnout among Latinos states that offered this
policy compared states that did not.
Furthermore, expert called Respondents
this case, Barry Burden, co-authored 2014
report
reaching
the
same,
unanticipated
conclusion, namely, that early voting was associated
with lower turnout: seems logical that making voting more
convenient will encourage more people cast ballots. challenge this notion
and show that the most popular reform
early voting actually decreases turnout
when
implemented
itself,
unanticipated consequence that has
significant implications for policy and for
theories how state governments can
influence turnout.
Elections: Issues Related Registering Voters and
Administering Elections, General Accounting Office, June 2016
(emphasis
added),
available
http://www.gao.gov/assets/680/678131.pdf.
Id. 97.
This result counterintuitive, and
certainly runs against the grain
conventional wisdom.9 the foregoing indicates, the Fourth Circuit
misplaced reliance minority voter preference
usage risks enshrining principle that not only
wrong, but perverse, that could lead lower
minority participation elections. that happens,
federal voting law will have been sacrificed the
law unintended consequences. All such potential
inconsistencies may simply avoided requiring
that the discriminatory effect electoral practice
must shown its effect voter registration
turnout. These commonsense metrics best reflect the
priorities already embodied federal voting law.
Amici respectfully submit that the Fourth Circuit
erred when discounted this evidence. number other statements the Fourth
Circuit opinion demonstrate that did not correctly
apply the applicable law. explaining its reversal the lower court, the Fourth Circuit stated that the
district court believed that the disproportionate
impact the new legislation depends the options
remaining after enactment the legislation.
Arlington Heights requires nothing the kind.
McCrory, 831 F.3d 230. But the phrase options
remaining clearly referring what type voting
opportunities are available minority voters after
Barry Burden, David Canon, Kenneth Mayer
Donald Moynihan, Election Laws, Mobilization, and
Turnout: The Unanticipated Consequences Election Reform, AM. POL. SCI. (2014).
the challenged provisions began being enforced.
example would where minority voter, who had
frequently voted the first seven days the 17-day
early voting period, decided, upon learning the
new early voting time period, early vote within the
10-day period allotted under 2013-381. Another
example would voter who had voted out his
her precinct the past, but who decided, upon
learning the new requirement vote one
assigned precinct, simply begin voting the
correct precinct.
Likewise, its opinion the Fourth Circuit stated
that the standard the district court used measure
impact required too much the context
intentional discrimination claim. Id. 231. The
above-cited precedents this Court specifically
require that the context such claim inquiry
must made determine whether challenged
law impacting plaintiff voting opportunities.
Thus, was actually the Fourth Circuit analysis
that did not ask enough.
Another telling statement the Fourth Circuit
opinion its observation that cumulatively, the
panoply restrictions results greater
disenfranchisement than any the law provisions
individually. Id. (emphasis added). Requiring
voters bring ID, vote 10-day early voting
period, register advance, and vote their
own
precincts,
not
constitute
voter
disenfranchisement the absence showing discriminatory effect. This especially true
where, here, the party who had the burden
proof did not offer evidence showing reduction
registration voting African American voters.
Without such evidence, was inappropriate
characterize the evidence the case involving
disenfranchisement.
This mischaracterization
again
demonstrates
the
Fourth
Circuit
misunderstanding what the precedents this
Court require.
III. The Fourth Circuit Error Highlights
Unresolved
Split
Between
Circuits
Regarding the Kind Evidence Necessary Show Discriminatory Effect. described above, the Fourth Circuit based its
finding discriminatory effect part the fact
that African Americans disproportionately used
each the removed mechanisms (831 F.3d 231),
while discounting far more probative evidence
concerning minority turnout and registration
actual elections. This ruling places one side major divide between federal courts appeal over
how show discriminatory effect under Section the Voting Rights Act.
The Fifth Circuit utilized similar approach
Veasey Abbott, 830 F.3d 216 (5th Cir. 2016) (en
banc), cert. den. sub nom. Abbott Veasey, 2017 U.S.
LEXIS 789 (Jan. 23, 2017). the context
Section results claim, the Court applied twostep framework show the requisite discriminatory
effect. First, challenged procedure must impose
discriminatory burden members protected
class, and second, that burden must part
caused linked historical conditions that
produce discrimination against that class. Id.
244 (citations omitted). According the Fifth
Circuit, this second element sufficient, without
more, establish the requisite causal link between
the burden voting rights and the fact that this
burden affects minorities disparately. Id. 245
(citation omitted). Relying statistical evidence
disparate access voter (id. 250) and
established history discrimination Texas, the
Court found violation Section Id. 257, 264. wholly contrary approach was adopted
Frank Walker, 768 F.3d 744 (7th Cir. 2014).
that case, the U.S. Court Appeals for the Seventh
Circuit reversed lower court ruling and held that
Wisconsin law requiring voters present
photographic identification (photo ID) the polls
did not violate Section The Seventh Circuit
acknowledged disparities the percentages
white, black, and Latino voters who possessed
acceptable photo IDs the documents necessary
obtain them. Id. 752. But the Court also
recognized the principle that Section does not
condemn voting practice just because has
disparate effect minorities. Id. 753. [W]hen
the validity the state voting laws depends
disparate impact essential look
everything (the totality circumstances, 2(b) says) determine whether there has been such
impact. Otherwise will dismantle every state
voting apparatus. Id. 754. The Court noted, for
example, that the percentages voters registering,
voting person, and registering while obtaining
drivers licenses were all affected racial
disparities. Id. Yet would implausible read sweeping away almost all registration and
voting rules. Id. Accordingly, the Seventh Circuit
proceeded looking not [the challenged act]
isolation but the entire voting and registration
system, and concluded that black voters not
seem disadvantaged Wisconsin electoral
system whole. Id. 753. Minority turnout
and registration the State were high. Id. 75354. There was finding that photo laws
measurably depress turnout the states that have
been using them. Id. 751. Further, the law
issue simply did not qualify substantial burden the right vote. Id. 748, citing Crawford
Marion County Election Bd., 553 U.S. 181, 198
(2008). The ability each citizen vote remained
entirely within that citizen control. The district
judge did not find that blacks Latinos have less
opportunity than whites get photo IDs. Instead
the judge found that, because they have lower
income, these groups are less likely use that
opportunity. And that does not violate Id.
753.
The Ninth Circuit utilized similar reasoning
reach similar result Gonzalez Arizona, 677
F.3d 383 (9th Cir. 2012) (en banc), aff sub nom.
Arizona Inter Tribal Council Arizona, Inc., 133 Ct. 2247 (2013). The Court noted the principle
that challenge based purely showing
some relevant statistical disparity between
minorities and whites, without any evidence that
the challenged voting qualification causes that
disparity, will rejected. Id. 405, citing Smith Salt River Project Agric. Improvement Power
Dist., 109 F.3d 586, 595 (9th Cir. 1997). the case
before it, the Court acknowledged the district court
findings that Latinos had suffered history
discrimination that hindered their ability
participate the political process fully, that there
were socioeconomic disparities between Latinos and
whites and that Arizona continues have some
degree racially polarized voting. 677 F.3d 406.
The Ninth Circuit still rejected the Section claim,
because the plaintiff had adduced evidence that
Latinos ability inability obtain possess
identification for voting purposes (whether not
interacting with the history discrimination and
racially polarized voting) resulted Latinos having
less opportunity participate the political
process. Id. 407.
The confusion engendered the disagreement
among the courts appeal how establish
discriminatory effect was reflected Ohio
Democratic Party Husted, 834 F.3d 620 (6th Cir.
2016). Praising the two-step framework utilized
the Fourth and Fifth Circuits helpful, the Sixth
Circuit added crucial qualification: Section
plaintiffs must show proof disparate impact
amounting denial abridgement protected
class members right vote that results from the
challenged standard practice. Id. 637. The
Sixth Circuit emphasized that there must proof
that the challenged standard practice causally
contributes the alleged discriminatory impact.
Id. 638. Only [i]f this first element met does
the second step come[] into play. Id. Thus, the
Sixth Circuit standard resembles the Fourth and
Fifth Circuits standards form, but follows the
Seventh and Ninth Circuits standards substance.
There is, sum, pronounced circuit split
how establish the discriminatory effect necessary show either intentional results claim
under Section The Fourth and Fifth circuits
espouse relaxed standard, which general
history discrimination can turn almost any
statistical disparity regarding the use electoral
procedures different racial groups into
actionable, discriminatory effect. Cleaving more
closely the language Section the Seventh and
Ninth Circuits require that challenged practice direct cause diminishment protected
group opportunity participate the electoral
process.
The Sixth Circuit requires the same
showing causation, although confusingly
couches its standard terms borrowed from the
Fourth Circuit.
The guidance the Court
necessary resolve this impasse.
CONCLUSION
For the foregoing reasons, amici respectfully
request that the Court grant the petition for writ
certiorari.
Respectfully submitted, Christopher Coates
LAW OFFICE CHRISTOPHER COATES
934 Compass Point
Charleston, 29412
Chris Fedeli
Lauren Burke
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
lburke@judicialwatch.org
Counsel for Amici Curiae
January 26, 2017