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Judicial Watch • Ohio Democratic Party Husted Amicus AEF 3561

Ohio Democratic Party Husted Amicus AEF 3561

Ohio Democratic Party Husted Amicus AEF 3561

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Date Created:July 1, 2016

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Case: 16-3561
Document:
Filed: 07/01/2016
No. 16-3561
_____________________________________ THE UNITED STATES COURT APPEALS
FOR THE SIXTH CIRCUIT
_____________________________________
OHIO DEMOCRATIC PARTY, al.,
Plaintiffs Appellees,
JON HUSTED, al.,
Defendants Appellants.
____________________________________ Appeal from the U.S. District Court for the Southern District Ohio Eastern
Division, Case No. 2:15-cv-1802.
_____________________________________
AMICUS CURIAE BRIEF JUDICIAL WATCH, INC. AND
ALLIED EDUCATIONAL FOUNDATION SUPPORT
DEFENDANTS-APPELLANTS
____________________________________
Robert Popper
Chris Fedeli
Paul Orfanedes
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Date:
July 2016
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TABLE CONTENTS
PAGE
TABLE CONTENTS ..........................................................................................
TABLE AUTHORITIES ................................................................................... iii
IDENTITY AND INTERESTS THE AMICI .................................................. 1-3
AUTHORITY FILE ....3
ARGUMENT .............................................................................................................
CONCLUSION ........................................................................................................
CERTIFICATE SERVICE AND ELECTRONIC FILING ..............................
CERTIFICATE COMPLIANCE ..15
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TABLE AUTHORITIES
CASES
PAGE
Frank Walker, 768 F.3d 744 (7th Cir. 2014) ......................................................
Ohio State Conference N.A.A.C.P. Husted, F.Supp.3d 808
(6th Cir. 2014).
Shelby County Holder, 133 Ct. 2612 (2013) .....................................................
STATUTES U.S.C. 10301 ...................................................................................................... U.S.C. 10301(b) ................................................................................................. U.S.C. 10309 .....................................................................................................
OTHER AUTHORITIES
Barry Burden, David Canon, Kenneth Mayer Donald Moynihan,
Election Laws, Mobilization, and Turnout: The Unanticipated Consequences Election Reform, Am.J.Pol.Sci. (2014)
Elections: Issues Related Registering Voters and Administering Elections,
General Accounting Office, June 2016, available
http://www.gao.gov/assets/680/678131.pdf ..10-11
Robert Popper, The Voter Suppression Myth Takes Another Hit, Wall St.J., Dec.
28, 2014, available http://www.wsj.com/articles/the-voter-suppressionmyth-takes-another-hit-1419811042.............................................................11
iii
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IDENTITY AND INTERESTS THE AMICI1
Judicial Watch non-partisan, public interest organization headquartered Washington, DC. Founded 1994, Judicial Watch seeks promote
accountability, transparency and integrity government and fidelity the rule
law. furtherance these goals, Judicial Watch regularly files amicus curiae
briefs and prosecutes lawsuits relating election integrity and voting. Judicial
Watch has developed knowledge, expertise, and insight regarding the balance
election laws must strike between ballot access and election integrity.
Judicial Watch engaged multi-year legal effort ensure states and
counties are conducting elections with integrity and required federal law,
effort Judicial Watch commenced 2012 and continues through the present.
During this time, Judicial Watch has litigated election law cases against the states Indiana, Ohio, Hawaii, Maryland, and North Carolina.
The Allied Educational Foundation AEF nonprofit charitable and
educational foundation based Englewood, New Jersey. Founded 1964, AEF dedicated promoting education diverse areas study, including electoral
Undersigned counsel contacted all parties for their consent this amici curiae
brief, and all parties have given their consent.
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law. AEF regularly files amicus curiae briefs means advance its purposes.
AEF regularly participates election law matters before federal courts.
This brief submitted pursuant Rule 29(b) the Federal Rules
Appellate Procedure.2
Amici interest this case ensure that Ohio elections are conducted
with integrity and ensure that all citizens have confidence the legitimacy
election results. Amici are concerned that the relief requested Plaintiffs this
case, granted, would have chilling effect voter confidence the integrity
elections, both Ohio and nationwide. Ohio prohibited from reducing the
early voting period for federal elections, Ohio ability maintain orderly
elections process that limits opportunities for voter fraud will hindered.
Furthermore, Plaintiffs requested relief will undermine the confidence integrity elections among citizens. the Supreme Court has noted, public confidence
the integrity the electoral process encourages citizen participation the
democratic process. Crawford, al. Marion County Election Board, 553 party counsel authored the brief whole part; party party
counsel contributed money that was intended fund preparing submitting the
brief; and person other than the amici curiae their counsel contributed money
that was intended fund preparing submitting the brief.
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181, 197 (2008). Conversely, lack integrity undermines confidence the
electoral system and discourages citizen participation democracy.
AUTHORITY FILE
Courts have recognized that they have broad discretion permit non-party participate amicus curiae. explained then-Judge Alito, [e]ven when
party well represented, amicus may provide important assistance the
court. Neonatology Assocs., P.A. Commissioner Internal Revenue, 293 F.3d
128, 132 (3rd Cir. 2002). Indeed, the federal courts regularly permit parties with
various interests appear amici, reasoning that restrictive policy with respect granting leave file may create least the perception viewpoint
discrimination. Id. 133. Furthermore, this case, amici are raising issues
about which they have particular knowledge and which may helpful the
Court evaluation the appeal.
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ARGUMENT
The Plaintiffs Failure Establish the Impact Early Voting Turnout
Precludes Finding Voting Rights Violation
This Court, along with all other courts considering the practice early
voting, must properly address growing body evidence, including evidence
offered the trial this matter and meta-study recently released the General
Accounting Office, suggesting that early voting has negative effect voter
turnout. Unless and until this done, courts run serious risk issuing rulings
that are not just wrong, but perverse, that they will diminish minority voters
opportunities participate the electoral process.
Courts have differed regarding the relevance existing estimated turnout
data when determining whether federal voting laws have been violated. Frank Walker, 768 F.3d 744 (7th Cir. 2014), cert. denied, 135 Ct. 1551 (2015), the
Court found turnout evidence relevant, reversing lower court ruling and
holding that Wisconsin law requiring voters present photographic
identification (photo ID) when voting person did not violate Section the
Voting Rights Act, U.S.C. 10301. The Court noted that minority turnout and
registration the State were high. 768 F.3d 753-54. The Court also found significant that the district court
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did not make findings about what happened voter turnout
Wisconsin during the February 2012 primary, when Act was
enforced (before two state judges enjoined it). Did the requirement
photo reduce the number voters below what otherwise would
have been expected? Did that effect differ race ethnicity? The
record does not tell us. The record also does not reveal what has
happened voter turnout the other states (more than dozen) that
require photo IDs for voting. plaintiffs contend photo
requirement especially reduces turnout minority groups, students,
and elderly voters, should possible demonstrate that effect.
Actual results are more significant than litigants predictions. But
such evidence has been offered.
Id. 747. The Court added that change turnout would have changed the
analysis plaintiffs Section claim, because finding that photo law has
significantly reduced the turnout particular state would imply that the
requirements additional costs outweigh any benefit improving confidence
electoral integrity. Id. 751. contrast, Ohio State Conference N.A.A.C.P. Husted, Supp. 808 (6th Cir. 2014), aff 768 F.3d 524 (6th Cir. 2014), stayed, 135 Ct.
(2014), vacated, No. 14-3877 (6th Cir. Oct. 2014), both the district court and
this Court took different view turnout data when granting preliminary
injunction concerning the same early voting changes that are issue this case.
While noting that Plaintiffs had not established that voter turnout would
necessarily decreased overall the challenged practices, this Court agreed
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with the district court that, its plain terms, not necessarily about voter
turnout but about opportunity participate the political process compared
other groups. 768 F.3d 551, citing Supp. 851. the Court view,
regardless the effect minority turnout, the plaintiffs could prevail because
they had shown that the combined effects 238 and Directive 2014-17 result fewer opportunities for African Americans participate the electoral
process. Id. 551, citing Supp. 851 (internal quotations omitted).
The district court here clearly took the same view, finding that reduction
early voting will disproportionately burden African Americans, because expert
and anecdotal evidence reflects that African Americans vote EIP [early in-person],
and specifically EIP during Golden Week, significantly higher rate than other
voters. ECF 117 36. The district court made this finding notwithstanding its
expressed agnosticism regarding any effect the challenged law might have
minority registration turnout. [A]lthough the Court cannot predict how many
African Americans will turn out future elections, reasonable conclude
from this evidence that their right vote will modestly burdened S.B. 238
reduction the EIP voting period and elimination SDR. Id. 48.
Under this analysis, the Section violation consists the fact that the State
has eliminated electoral practice that minority voters use prefer; once this
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shown, further evidence necessary. This approach divorces minority
preference for particular electoral practice from the real-world effect that
practice minority voting power.
Amici respectfully submit that this approach wrong fact, that
exactly backwards. The rate which voters register and turn out vote the true
measure electoral power. 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).3 The fact that
minority voters prefer particular voting practice only relevant interesting
insofar affects the more important issue whether those voters will actually
register vote show the polls. hypothetical will make this abundantly clear. First suppose the
district court has found here that African American voters prefer early voting.
Now suppose that were conceded all parties that early voting has been proved associated with lower minority voter turnout. (This constellation facts
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 still statutory factor assessing
whether terminate the use federal observers. U.S.C. 10309.
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certainly possible.) those circumstances, would the State elimination early
voting constitute violation Section the Voting Rights Act, actionable
burden under the Anderson/Burdick test? According the district court logic,
would, because minority voters who prefer early voting would have fewer
opportunities participate the electoral process (43 Supp. 851), while
any effect registration turnout could ignored irrelevant.
Yet this outcome makes sense. The Voting Rights Act has never been
applied any manner that would lower minority turnout registration. Indeed,
amici respectfully submit that, the circumstances the hypothetical, all but
certain that the State Ohio would sued other plaintiffs seeking enjoin
the use early voting the ground that violates Section Given the district
court approach federal voting law, interesting speculate which set plaintiffs would win.
All such potential inconsistencies may simply avoided making the
sensible assumption that the effect electoral practice voter registration
turnout critical part determining whether violates Section the Voting
Rights Act the Anderson/Burdick test under the Fourteenth Amendment. Proof such effect turnout registration should logically viewed part
plaintiff case chief. particular, the elimination electoral practice
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preferred minority voters should not constitute violation federal voting law
unless plaintiff also can show that negatively affects minority turnout
registration.
This issue squarely presented the instant case statistical analysis,
all but ignored the district court, which suggests that early voting actually
depresses voter turnout. the authors 2013 study explain: 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.
This result counterintuitive, and certainly runs against the
grain conventional wisdom.
Barry Burden, David Canon, Kenneth Mayer Donald Moynihan,
Election Laws, Mobilization, and Turnout: The Unanticipated Consequences
Election Reform, AM. POL. SCI. (2014), Defendants Trial Exh. 14-N, ECF
127-14 226 (PAGEID 6826). This article particularly inconvenient for the
plaintiffs because one the authors, Barry Burden, was expert for them
the original district court proceedings. Supp. 836-37.
The plaintiffs hired another one the authors, David Canon, expert,
apparently order dispute the characterization this article the defendants
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experts. ECF 117 14. Yet Mr. Canon attempts walk back the conclusions
his own article not amount much. ultimately testified trial that was
his opinion that there are cases which the depressant effect voter turnout
the electoral practice early voting fully offset the addition same-day
registration. ECF 101 (PAGEID 4711). course, this phrasing implies
that there are cases where the depressant effect turnout early voting
not offset other factors.
The authors conclusions about the depressant effect early voting,
moreover, are fully supported other studies. Only yesterday, the General
Accounting Office (GAO) issued report online which gathered and presented
the conclusions scores studies concerning number different electoral
reforms. With respect early voting, the report states follows: reviewed studies from publications, and these studies had
varied findings. Seven studies found 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.
Elections: Issues Related Registering Voters and Administering Elections,
General Accounting Office, June 2016 (emphasis added), available
http://www.gao.gov/assets/680/678131.pdf. The GAO observes that one study
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found some evidence that early in-person voting decreased turnout among Latinos states that offered this policy compared states that did not. Id. 97.
Viewing the question from the other side the coin, the defendants
presented extensive expert testimony the effect that the elimination early
voting was accompanied either stable rising minority turnout, North
Carolina, Georgia, and Florida. See Defendants Trial Exh. 15, ECF 127-15
(PAGEID 7276) (North Carolina) and (PAGEID 7284) (Georgia);
Defendants Trial Exh. 127-14 (PAGEID 6692) and (PAGEID
6694); see also Robert Popper, The Voter Suppression Myth Takes Another Hit,
Wall St. J., Dec. 28, 2014, available http://www.wsj.com/articles/ he-votert
suppression-myth-takes-another-hit-1419811042 (discussing North Carolina). is, then, serious, open question whether the elimination early
voting will lead lower voter turnout. Because the plaintiffs have failed
present persuasive evidence establishing the likely effect early voting voter
turnout, they have not met their burden establishing their claims
preponderance the evidence. Amici respectfully submit that judgment, therefore,
should entered for the defendants. the alternative, this case should remanded the district court for
further findings the specific issue the probable effect the requested
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injunction voter turnout subsequent elections. this context, worth
noting that the district court expressly commented the inadequacy the
evidence before it. Confronted with the fact that the State Ohio does not
collect, and therefore does not have, information the racial identity its
voters, the district court observed that the inability confirm voter race key
deficiency the experts analyses the impact the challenged provisions
different racial groups and concluded that had been forced evaluate the
challenged provisions burdens the fundamental right vote based part
somewhat speculative expert evidence. ECF 117
Amici respectfully submit that this Court should not affirm the judgment
the district court. were so, this Court risks issuing judgment that not
only wrong, but perverse, that might lead lower voter turnout direct
contravention one the basic purposes the Voting Rights Act. that case,
federal voting law will have been sacrificed the law unintended
consequences. The Court should not take that risk.
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CONCLUSION
For the foregoing reason, and for the reasons articulated the Brief
Appellants this case (Doc. 29), amici Judicial Watch and the Allied Educational
Foundation respectfully request this Court reverse the lower court decision.
Dated: July 2016
Respectfully submitted,
/s/ Paul Orfanedes
Robert Popper
Chris Fedeli
Paul Orfanedes
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
porfanedes@judicialwatch.org
Attorneys for Amici Judicial Watch, Inc.
and Allied Educational Foundation
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CERTIFICATE COMPLIANCE
Pursuant Federal Rule Appellate Procedure 32(a)(7)(B), hereby
certify that this brief proportionally spaced, 14-point Times New Roman font.
Per Microsoft Word count, the brief contains 2,748 words.
Dated: July 2016 Paul Orfanedes
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CERTIFICATE SERVICE AND ELECTRONIC FILING hereby certify, pursuant Fed. App. 25(d)(2), that electronically
filed the foregoing with the Clerk the United States Court Appeals for the
Sixth Circuit using the appellate CM/ECF system. certify that the parties the
case are registered CM/ECF users and that service will accomplished the
appellate CM/ECF service.
Dated: July 2016 Paul Orfanedes