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Judicial Watch • SCOTUS amicus NC v League Women Voters 780

SCOTUS amicus NC v League Women Voters 780

SCOTUS amicus NC v League Women Voters 780

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No. 14-780 THE 

Supreme Court the United States 
STATE NORTH CAROLINA, AL., 
Petitioners, 
LEAGUE WOMEN VOTERS NORTH
 CAROLINA, AL., 
Respondents. Petition for Writ Certiorari the United 
States Court Appeals for the Fourth Circuit 

BRIEF AMICI CURIAE JUDICIAL
 WATCH, INC. AND ALLIED EDUCATIONAL 
FOUNDATION SUPPORT PETITIONERS Christopher Coates  Chris Fedeli
 Counsel Record 
LAW OFFICES JUDICIAL WATCH, INC. CHRISTOPHER COATES 425 Third Street 934 Compass Point Washington, 20024Charleston, 29412 (202) 646-5172
(843) 609-7080               cfedeli@judicialwatch.org 
Counsel for Amici Curiae 
Dated: February 2015 

TABLE CONTENTS 
TABLE CONTENTS ............................................. 

TABLE AUTHORITIES ..................................... iii 

INTERESTS THE AMICI CURIAE ..................... 

STATUTORY FRAMEWORK .................................... 

SUMMARY ARGUMENT..................................... 

REASONS FOR GRANTING THE PETITION ......... 	THE FOURTH CIRCUIT HAS DECIDED SIGNIFICANT ISSUE FEDERAL VOTING LAW MANNER THAT CONFLICTS WITH RULINGS FROM THE SEVENTH AND NINTH CIRCUITS. ......... 	The Seventh and the Ninth Circuits Have Interpreted Section the Voting RightsAct Require Causation Significant    Injury. ............................................................. 	According the Fourth Circuit, Section Violated Change Voting RulesHas Any Racially Disproportionate Impact That Partly Due Social and   Historical Conditions. ................................... 	The Differences These Approaches Are Significant and Lead Vastly Different  Outcomes. ..................................................... 
II. 
THIS CASE PRESENTS IMPORTANT
 AND RECURRING ISSUE AFFECTING
 HOW STATES CONDUCT THEIR
 ELECTIONS. ......................................................14 

CONCLUSION..........................................................16 

TABLE AUTHORITIES 
CASES 
Chisom Roemer, 501 U.S. 380 (1991) ..................... 

Crawford al. Marion County Election Board, 553 181 (2008) ................................ 
Frank Walker, 768 F.3d 744 (7th Cir. 2014) ............................................. passim 
Gonzalez Arizona, 
677 F.3d 383 (9th Cir. 2012) (en banc), 
affd, Arizona Inter Tribal 
Council Arizona, Inc., 
133 Ct. 2247 (2013) ....................................... 

League United Latin Am. Citizens Perry, 548 U.S. 399 (2006) ..............................
 
League Women Voters 
North Carolina North Carolina, 
769 F.3d 224 (4th Cir. 2014) ...................... passim
 
NAACP McCrory, 997 Supp. 322
(M.D.N.C. 2014) ............................................. 

Ohio State Conference N.A.A.C.P. 
Husted, 768 F.3d 524
 (6th Cir. 2014), stayed, 135
 Ct. (2014), vacated, 
No. 14-3877 (6th Cir. Oct. 2014) .............. 11, 

Simmons Galvin, 575 F.3d 
 (1st Cir. 2009) ....................................................... 

Smith Salt River Project Agric. 
Improvement Power Dist., 
109 F.3d 586 (9th Cir. 1997) ................................ 

U.S. Brown, 561 F.3d 420 (5th Cir. 2009) ............ 
White Regester, 412 U.S. 755 (1973) .......................   

CONSTITUTIONAL PROVISION 
U.S. CONST. art.  ............................................... 

STATUTES U.S.C.  10301 .............................................. passim U.S.C.  10304 .................................................. 

RULES 
SUP. CT. .............................................................. 

OTHER AUTHORITIES 
Kayla Ayres, Lawmaker Pushing  For Voter Requirements, KRQE NEWS, Jan. 2015, available  http://krqe.com/2015/01/05/nm-lawmakerpushing-for-voter-id-requirements/ ................... 
Laura Myers, Shift GOP Control Carson City Could Boost Voter Law, LAS VEGAS REVIEW-JOURNAL, Jan.11, 2015, available http://www.reviewjournal.com/news/nevadalegislature/shift-gop-control-carson-city-couldboost-voter-id-law ............................................... 
National Conference State Legislatures, Absentee and Early Voting, Oct. 21, 2014, available http://www.ncsl.org/research/elections-andcampaigns/absentee-and-early-voting.aspx  ...... 
National Conference State Legislatures, Same Day Voter Registration, Jan. 20, 2015, available http://www.ncsl.org/research/elections-andcampaigns/same-day-registration.aspx ............. 
National Conference State Legislatures, Voter Identification Requirements, Oct. 31, 2014, available http://www.ncsl.org/research/elections-andcampaigns/voter-id.aspx.. ................................... 
Robert Popper, The Voter Suppression Myth Takes Another Hit, WALL ST. J.,  Dec. 28, 2014, available http://www.wsj.com/articles/the-votersuppression-myth-takes-another-hit1419811042. ........................................................ 
Zach Pluhacek, Group Threatens Litigation Lawmakers Pass Voter Bill, LINCOLN JOURNAL STAR, Jan. 10, 2015,  available http://columbustelegram.com/news/state-andregional/group-threatens-litigation-iflawmakers-pass-voter-id-bill/article_62c284fc3634-5d12-898e-c0440a8f6047.html .................. 

INTERESTS THE AMICI CURIAE 
Judicial Watch, Inc. (Judicial Watch) nonpartisan educational foundation that seeks promote transparency, integrity, and accountabilityin 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 number occasions. 
The Allied Educational Foundation (AEF) nonprofit charitable and educational foundation based Englewood, New Jersey. Founded 1964, AEF dedicated promoting education diverseareas study. AEF regularly files amicus curiae briefs means advance its purpose and hasappeared amicus curiae this Court number occasions. 
Amici believe that the decision the U.S. Courtof Appeals for the Fourth Circuit raises importantissues federal election law which should heard this Court. particular, amici are concerned that the Fourth Circuits ruling, allowed stand,will undermine voter confidence the integrity ofelections, enshrine new race-based standard Pursuant Supreme Court Rules 37.2 and 37.6, amici state that all parties received timely notice the intent filethis brief, and all parties granted consent. addition, counsel for party authored this brief whole part; andno person entity, other than amici and their counsel, made monetary contribution intended fund the preparation and submission this brief. 
Section the Voting Rights Act, and guarantee, practical matter, that state will make changes its electoral laws, whether ensure electoral integrity for any other reason, those changeswill some way disproportionately affect minority voters. this Court has explained, publicconfidence the integrity elections encouragescitizen participation the democratic process. Crawford al. Marion County Election Board, 553 181, 197 (2008). Conversely, lack faithin electoral integrity undermines confidence thesystem and discourages citizen participation democracy. 
For these and other reasons, amici urge theCourt grant the Petition for Writ Certiorari.  

STATUTORY FRAMEWORK
        Section the Voting Rights Act proscribes the denial abridgement the right any citizen ofthe United States vote account race color . U.S.C.  10301. provides that violation established if, based the totality ofcircumstances, shown that the political processes leading nomination electionin the State political subdivision are notequally open participation members ofa class citizens protected [against such denial abridgement] that its members have less opportunity than other members ofthe electorate participate the political process and elect representatives their 
choice. U.S.C.  10301(b); see Chisom Roemer, 501 U.S. 380, 397-8 (1991) (plaintiffs burden show thatits members had less opportunity participatein the political processes and elect legislators oftheir choice) (emphasis added Chisom), citing White Regester, 412 U.S. 755, 766 (1973). 
Section proscribes both voting practices motivated discriminatory intent and those that lead discriminatory result.  Chisom, 501 U.S. 
394. The cases discussing Section results claimstypically characterize those claims further involving either vote dilution vote denial. Vote dilution refers practices that diminish minoritiespolitical influence, such at-large elections andredistricting plans that weaken minority voting strength. Simmons Galvin, 575 F.3d 24, (1stCir. 2009) (citations omitted). Vote denial, allegedhere against North Carolina, refers practices thatprevent people from voting having their votescounted. Id. (citations omitted).   
This appeal involves claims that North Carolina engaged vote denial violation Section 2s results standard when the state legislature passed law repealing both same-day registration and out-of-precinct voting. 

SUMMARY ARGUMENT 
There major divide between federal courts ofappeal over the proper application Section theVoting Rights Act. the ruling that the subject this petition, the Fourth Circuit applied novelinterpretation Section assessing claims ofvote denial. Its approach contrasts with thetraditional approach adopted the U.S. Courts ofAppeals for the Seventh and the Ninth Circuits.   
The traditional view assigns meaning Section2s explicit requirement that violation established when members protected class haveless opportunity than other members the electorate participate the political process and elect representatives their choice.  Under this approach, practice alleged violate Section musthave caused the particular harm set forth the statute. This means that the harm must sufficiently serious and intractable justify finding that impairs the relevant opportunity participate and elect representatives.  Courts applying this interpretation warn that the raciallydisproportionate impact voting law not enough, its own, prove violation Section 
The Fourth Circuits ruling rejects this principle. the contrary, the Court places disproportionateimpact the center its analysis, concluding that North Carolina violated Section repealingelectoral procedures that black voters prefer use.By this reasoning, whether the challenged rule actually deterred minority voters from registering voting beside the point. 
This approach entails number consequences. Most notably, makes far more likely thatplaintiffs will able prove that particular stateelectoral procedure (or change procedure) violates the Voting Rights Act. This approach implicitlyrestricts Section claims made minority voters. And ensures that, once determined that relatively greater proportion minorityvoters prefers electoral procedure, that procedure can longer altered state legislature. all, the practical effect the Fourth Circuits ruling incorporate retrogression standard  formerly associated only with Section the Voting Rights Act  into the enforcement Section 
The standards applied the Fourth and the Seventh Circuit are not just different, they areopposite. One these courts looking criticallegal issue through the wrong end the telescope.The resolution this conflict will affect several ongoing lawsuits and many more anticipatedlawsuits.2  This Courts guidance needed settle this controversy.  
Indeed, the conflicting ruling issued the U.S. Court ofAppeals for the Seventh Circuit also the subject pendingpetition for certiorari. See Frank Walker, No. 14-803 (docketed January 2015). 

REASONS FOR GRANTING THE PETITION	 THE FOURTH CIRCUIT HAS DECIDED SIGNIFICANT ISSUE FEDERAL VOTING LAW MANNER THAT CONFLICTS WITH RULINGS FROM THE SEVENTH AND NINTH CIRCUITS. The Seventh and the Ninth Circuits Have Interpreted Section the Voting RightsAct Require Causation SignificantInjury. Frank Walker, 768 F.3d 744 (7th Cir. 2014),the U.S. Court Appeals for the Seventh Circuit reversed lower court ruling and held that aWisconsin law requiring voters present photographic identification (photo ID) the pollsdid not violate Section  The Seventh Circuit acknowledged disparities the percentages white, black, and Latino voters who possessedacceptable photo IDs the documents necessary toobtain them. Id. 752. But the Court also recognized the principle that Section does notcondemn voting practice just because has disparate impact minorities.  Id. 753. 
The Court observed that when the validity the states voting laws depends disparate impact essential look everything (the totality circumstances, 2(b) says) determine whether there has been such impact. Otherwise 2 will dismantle every states voting apparatus.  Id. 
754. The Court noted, for example, that the percentages voters registering, voting person, and registering while obtaining drivers licenseswere all affected racial disparities. Id. Yet would implausible read 2 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, andconcluded that black voters do not seem disadvantaged Wisconsins electoral system awhole. Id. 753. Minority turnout andregistration the State were high.  Id. 753-54. There was finding that photo laws measurably depress turnout the states that havebeen using them. Id. 751. 
Further, the law issue simply did not qualify substantial burden the right vote.  Id. 748, citing Crawford, 553 U.S. 198. The ability ofeach citizen vote remained entirely within thatcitizens control.  The district judge did not find that blacks Latinos have less opportunity than whitesto get photo IDs. Instead the judge found that, because they have lower income, these groups areless likely use that opportunity. And that does notviolate 2. 768 F.3d 753. 
The Ninth Circuit utilized similar reasoning reach similar result Gonzalez Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc), affd, Arizona Inter Tribal Council Arizona, Inc., 133 Ct. 2247 (2013). The Court noted the principle that a  challenge based purely showing some relevant statistical disparity between minorities and whites, without any evidence that the challengedvoting qualification causes that disparity, will berejected. 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 courts findingsthat 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, however, because the requisite causation had not been proved. The plaintiff had adduced noevidence that Latinos ability inability obtain orpossess 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. According the Fourth Circuit, Section 2Is Violated Change Voting Rules Has Any Racially Disproportionate ImpactThat Partly Due Social and Historical Conditions. 
The Fourth Circuit adopted very differentapproach when enjoined North Carolinas repeal oflaws allowing voters register and vote the sameday (same-day registration) and vote precincts where they not live (out-of-precinct voting).3 
League Women Voters North Carolina North Carolina, 769 F.3d 224, 246 (4th Cir. 2014).  Central its decision was the fact that African American voters disproportionately used those electoral mechanisms and were disproportionately impact[ed] their repeal. Id. 246. 
The district court had considered the changes toNorth Carolinas same-day registration procedures within the larger context all other registrationmethods offered under the law, includingregistration mail, state agencies, officiallysanctioned get-out-the-vote efforts, and during early voting. NAACP McCrory, 997 Supp. 322,350-51 (M.D.N.C. 2014). its view, the fact that black voters preferred use SDR [same-day registration] over these methods does not mean that without SDR voters lack equal opportunity. Id. 
350. conducted similarly broad inquiry regarding out-of-precinct voting, noting its minimaluse and the ready availability other methods voting, and concluding that its repeal did not violate Section Id. 368. Its approach thus anticipated that the Seventh Circuit, considering challenged statutes not in isolation but relation to the entire voting and registration system. See Frank, 768 F.3d 753. the same time, the Court upheld the denial motion enjoin laws shortening the early voting period and implementing soft rollout North Carolinas photo requirement. Id. 236-37. 
The Fourth Circuit rejected this approach rootand branch, focusing instead the raciallydisparate impact the challenged statutes. found that the district court abused its discretion waiving off disproportionately high African American use the repealed procedures as mere preferences that not absolutely precludeparticipation .  League Women Voters, 769 F.3d 243. 
According the Fourth Circuit, proof Section violation requires two basic elements.First, challenged procedure must impose discriminatory burden members protected class. Id. 240 (citation omitted). the Fourth Circuits opinion demonstrates, this simply means that the procedure must have racially disparateimpact  or, stated differently, that disparate impact the loss equal opportunity referred bySection Second, that burden must part belinked social and historical conditions relating todiscrimination.  Id. (citations omitted).  The Fourth Circuit did not elaborate this vague standard explain what kinds social historical links will  or, perhaps more tellingly, will not  establish it.4 any event, North Carolina was found haveviolated Section the grounds that the disproportionate impacts eliminating same-day registration and out-of-precinct voting were clearly 
The Seventh Circuit made point criticizing the Fourth Circuits standard failing distinguish discrimination bythe government from discrimination other persons. Frank, 768 F.3d 755. 
linked relevant social and historical conditions. Id. 245. The Differences These Approaches AreSignificant and Lead Vastly Different Outcomes. 
Important consequences flow from the choicebetween the standards adopted the FourthCircuit the one hand and the Seventh andNinth Circuits the other.  Most obviously, theFourth Circuits standard makes far more likely that any particular state law will found violate Section The Fourth Circuit does not requirevoters show that they face burden that substantial beyond their practical control. Instead, Section claimants challenging electoral practice need only establish raciallydisproportionate impact  and almost every statute will have such impact  plus general history ofdiscrimination, regardless whether can tied the loss any particular electoral opportunity.5 Under this standard, the effect statute turnout registration actual elections becomes largely irrelevant.  See, e.g., Ohio State Conference N.A.A.C.P. Husted, 768 F.3d 524, 551 (6th Cir. 2014), stayed, 135 Ct. (2014), vacated, No. 14-3877 (6th Cir. Oct. 2014) (using this standard toargue that Section may violated even plaintiffs not show that voter turnout would necessarily decreased overall). contrast, the Seventh Circuit treated evidence turnout and registration probative, not dispositive, the ultimate inquiry. Frank, 768 F.3d 751, 753-54. practice, courts applying the Fourth Circuitsapproach have enjoined state statutes that seemedto inflict minimal burdens voters. For example, the Sixth Circuit found that reduction Ohios early voting period from days constituted arace-based burden sufficient violate federal votinglaw. 768 F.3d 539, 555. And this case, the Fourth Circuit found that the elimination same-day registration (which states not even offer6) and out-of-precinct voting (which majority states not allow7) violated Section The Court made these findings notwithstanding the fact that citizen may overcome these obstacles simply using another available method register and votingin that citizens own precinct.8 second consequence the Fourth Circuitsruling that imports new, race-based element into the enforcement Section  The only way See McCrory, 997 Supp. 351. Id. 367. The Court also ignored undisputed evidence showing thatminority turnout and registration actually increased the May 2014 primaries held after the challenged laws were passed. McCrory, 997 Supp. 375 72.  This fact was discounted having little predictive power when came tolikely turnout the general election. See id.; North Carolina League Women Voters North Carolina, 135 Ct. (2014) (Ginsburg, J., dissenting). happened, however, minority turnout and registration also increased the November 2014 general election. See Robert Popper, The Voter Suppression Myth Takes Another Hit, WALL ST. J., Dec. 28, 2014, available http://www.wsj.com/articles/the-votersuppression-myth-takes-another-hit-1419811042. 
give meaning the requirement that raciallydisproportionate impact must linked socialand historical conditions relating discriminationis assume that this refers our lamentable national history discrimination against African Americans and other racial minorities. so, then corollary this requirement that white voters cannever successfully allege claim vote denialunder Section Yet court has ever held that Section race-based this way. the contrary, successful vote denial claims have been brought behalf white voters. See U.S. Brown, 561 F.3d 420 (5th Cir. 2009). 
The final result the Fourth Circuits ruling isevident from the foregoing considerations: servesto prevent state legislatures from repealing anystatute that disproportionately utilized favored minority voters. For this reason, petitioners are correct suggest that the Fourth Circuits rulingeffectively incorporates into Section the retrogression standard applied cases broughtunder Section the Voting Rights Act. See Petition For Writ Certiorari, No. 14-780 (Dec. 30,2014) and cases cited therein. Petitioners are also correct that long line Supreme Court precedent makes clear that Sections and have different functions and that this improper application Section Id.; see, e.g., League United Latin Am. Citizens Perry, 548 U.S. 399, 446 (2006) (discussing differences); U.S.C.  10304. 
II.	 THIS CASE PRESENTS IMPORTANT AND RECURRING ISSUE AFFECTING HOW STATES CONDUCT THEIR ELECTIONS. 
The choice electoral rules one the central constitutive actions undertaken state government. Accordingly, the power make suchrules is, most circumstances, reserved the states. See U.S. CONST. art.  
Section the Voting Rights Act probably themost important federal statute regulating stateelections. Where violated, federal court ordinarily will enjoin the relevant state laws. Thus, proceeding invoking Section not unlike constitutional adjudication its import and practical effect. The proper interpretation Section always matter vital importance. 
The issues presented this case are certain torecur the coming months and years. There are current, ongoing federal litigations concerningSection vote denial claims Wisconsin, Ohio, and Texas, well North Carolina. addition, several other states are considering new electionintegrity measures involving variety issues, including the measures discussed North Carolina.   
The National Conference State Legislatures(NCSL) reports that state legislatures consideredeither new photo voter laws amendments existing laws 2014.9 Just since the start 2015, New Mexico,10 Nebraska,11 and Nevada12 have introduced plans adopt new voter laws.Section challenges these measures are certain arise. The NCSL also reports that state utilizationof early voting and same-day registration proceduresare constant flux.13 present, every time one ofthose statutes altered repealed, Section The states were Illinois, Iowa, Maryland, Massachusetts,Minnesota, Nebraska, New York, West Virginia, Alaska, Colorado, Kentucky, Missouri, New Hampshire, and Oklahoma. National Conference State Legislatures, Voter Identification Requirements, Oct. 31, 2014, available http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx. Kayla Ayres, Lawmaker Pushing For Voter Requirements, KRQE NEWS, Jan. 2015, available http://krqe.com/2015/01/05/nm-lawmaker-pushing-for-voter-idrequirements/. Zach Pluhacek, Group Threatens Litigation Lawmakers Pass Voter Bill, LINCOLN JOURNAL STAR, Jan. 10, 2015, available http://columbustelegram.com/news/state-andregional/group-threatens-litigation-if-lawmakers-pass-voter-idbill/article_62c284fc-3634-5d12-898e-c0440a8f6047.html. Laura Myers, Shift GOP Control Carson City Could Boost Voter Law, LAS VEGAS REVIEW-JOURNAL, Jan.11, 2015, available http://www.reviewjournal.com/news/nevadalegislature/shift-gop-control-carson-city-could-boost-voter-idlaw. National Conference State Legislatures, Absentee and Early Voting, Oct. 21, 2014; and Same Day Voter Registration, Jan. 20, 2015; available http://www.ncsl.org/research/ elections-and-campaigns/absentee-and-early-voting.aspx, and http://www.ncsl.org/research/elections-and-campaigns/sameday-registration.aspx.  
lawsuit possible given the Fourth Circuits jurisprudence.   
The issue reconciling citizens and states legitimate interest election integrity with the anti-discrimination provisions the Voting Rights Act has broad public importance. Moreover, the time clarify the appropriate standard now, rather than rush the few weeks before the next federal election. For all these reasons, promptconsideration this Court warranted.      

CONCLUSION 
For the foregoing reasons, amici respectfully request that this Court grant the Petition for Writ ofCertiorari review the Fourth Circuits ruling.  
Respectfully submitted, Christopher Coates  Chris Fedeli
 Counsel Record 
LAW OFFICES JUDICIAL WATCH, INC. CHRISTOPHER COATES 425 Third Street 934 Compass Point Washington, 20024Charleston, 29412 (202) 646-5172
(843) 609-7080               cfedeli@judicialwatch.org 
Counsel for Amici Curiae 
February 2015