Election Law Live

PILF Participates in U.S. Civil Rights Commission Panels

Christian Adams, Board Members Discuss Minority Voting Access in NC

(RALEIGH, NC.) – February 2, 2018: Leadership for the Public Interest Legal Foundation (PILF) will participate in panels hosted by the U.S. Commission on Civil Rights regarding minority voting access today.

PILF President and General Counsel J. Christian Adams, Board Chairman Cleta D. Mitchell, and Board Member Hans A. von Spakovsky were invited to discuss a wide range of topics, to include “voter access, including federal voting rights enforcement efforts after the 2006 reauthorization of the temporary provisions of the VRA, and the impact of the Shelby County v. Holder decision on the Department of Justice’s enforcement strategies and priorities,” according to a USCCR release.

Excerpts from the PILF representatives’ prepared statements are provided below.

“One of the most effective ways to preserve the viability of civil rights laws is to remove partisan politics from civil rights enforcement. As soon as a sizeable segment of the public believes that civil rights laws are being leveraged for partisan ends, a sizeable segment of the public will stop supporting civil rights. The Voting Rights Act has enjoyed broad bipartisan support for decades. But if enforcement of the law is hijacked by partisan interests, the law will lose this bipartisan support.”

J. Christian Adams, PILF President and General Counsel

This Commission, with all due respect, should be about the business of gathering facts, not perpetuating myths … The recent history of litigation involving North Carolina election laws shows that the present system is working, where interest groups and litigants are having their day in court and getting their way, even when the empirical evidence discloses that minority voter turnout is not harmed by enactment of voter integrity measures. Even without preclearance requirements, federal law and the U.S. Constitution are wholly adequate to protect the right to vote.”

Cleta D. Mitchell, Foley & Lardner Partner and PILF Board Chairman

“A review of the litigation record of the Voting Section during the administrations of Bush and Obama shows a sharp, overall downward trend in the number of enforcement actions filed by the Justice Department under the various provisions of the [Voting Rights Act] from 2001 to 2016, including after 2013, the year Shelby County was decided … [F]ive years after Shelby County, there is still no evidence of widespread, systemic, official discrimination by any of the formerly covered jurisdictions or any other state.”

Hans A. von Spakovsky, Heritage Foundation Senior Legal Fellow and PILF Board Member

Von Spakovsky is slated to testify on the panel titled: Scope and Efficacy of Department of Justice Voting Rights Act Enforcement. Adams will follow with the Litigator’s Perspective of Laws Affecting Voter Access since Shelby session. Mitchell will finish with the Voter Access panel.

The Commission hearings will commence today in Raleigh, North Carolina. Location details are provided by the USCCR and a livestream of the events are will be available on the Commission’s YouTube channel beginning at 9:00am Eastern. An open comment period will commence around 6:00pm Eastern.

Apart from her duties with PILF, Cleta Mitchell is an attorney / partner in the Washington office of Foley & Lardner LLP, who practices in the area of campaign finance and election law. She has served on the Advisory Committee to the Standing Committee on Election Law of the American Bar Association, and as a member of the working group on Election Contests for the American Law Institute. She is a former member of the Oklahoma House of Representatives where she served for eight years.

Hans A. von Spakovsky is a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. As manager of the think tank’s Election Law Reform Initiative, von Spakovsky also studies and writes about campaign finance restrictions, voter fraud and voter ID, enforcement of federal voting rights laws, administration of elections and voting equipment standards.

Public Interest Legal Foundation (PILF) is a 501(c)(3) public interest law firm dedicated to election integrity. The Foundation exists to assist states and others to aid the cause of election integrity and fight against lawlessness in American elections. Drawing on numerous experts in the field, PILF seeks to protect the right to vote and preserve the Constitutional framework of American elections.

###

PILF: Ohio’s Voter List Maintenance Program is ‘Common Sense’

PILF Briefs SCOTUS on Value of Ohio’s Best Practices

(WASHINGTON, D.C.) – January 8, 2018: The Public Interest Legal Foundation (PILF) filed of an amicus brief on behalf of the American Civil Rights Union in support of Ohio’s policy for removing ineligible voters (Husted v. A. Phillip Randolph Institute 16-980).

“The State of Ohio is taking full advantage of its powers outlined in federal and state law to proactively manage voter rolls,” PILF President and General Counsel J. Christian Adams said. “Federal law doesn’t prohibit common sense. After a registrant has failed to respond to notices and not vote in multiple elections, they may be cleaned from the rolls. The interest groups arguing otherwise are keeping voter rolls filled with dead and ineligible voters.

“A decision for Secretary of State Jon Husted keeps more tools and best practices on the table for Ohio and the more than a dozen states standing with them working to maintain voter records for an increasingly mobile electorate,” Adams added.

Below is a summary of observations made in support of Ohio’s voter list maintenance policies.

The U.S. Constitution grants Ohio the power to determine which ineligible voters are subject to cancellation. Limited Congressional actions and court precedent find that regulatory authority over federal elections remains exclusively with the states.

Ohio’s ‘supplemental’ voter list maintenance process is in keeping with the National Voter Registration Act of 1993 and the Help America Vote Act of 2002—finding otherwise violates basic principles of Federalism. Regardless of the standard used to rule, the appellate court is currently throttling Ohio’s maintenance procedures based on restrictions not found in the law. A state’s duty to set qualifications for voting is matched with the expectation that they are enforced. Further, Congress has strictly barred states from only using inactivity as a justification for voter removal. The Sixth Circuit incorrectly carries that further, blocking Ohio from its combined approach of considering inactivity and responsiveness to official inquiry.

Ohio does not remove voters simply for failure to vote—which otherwise would be violation of the NVRA and HAVA. The supplemental procedure requires that a voter failing to cast ballots for two consecutive years, does not respond to a confirmation notice within the allotted time, and continues to not vote for an additional four consecutive years be removed. Inactivity alone does not trigger an automatic cancellation.

A copy of the brief, submitted on August 7, 2017 is available here.

Public Interest Legal Foundation (PILF) is a 501(c)(3) public interest law firm dedicated to election integrity. The Foundation exists to assist states and others to aid the cause of election integrity and fight against lawlessness in American elections. Drawing on numerous experts in the field, PILF seeks to protect the right to vote and preserve the Constitutional framework of American elections.

###

Bexar County is Concealing Noncitizen Registrants

County Faces Federal Lawsuit for Refusing to Release Records

(SAN ANTONIO, TX.) – January 3, 2018: The Public Interest Legal Foundation (PILF) gave notice to the office of the Bexar County Elections Administrator that it could face a lawsuit if it fails to reveal records of noncitizens that were registered to vote.

In a letter recently submitted to Bexar County, officials were given final notice that they now face “federal litigation should [they] continue to deny access to the requested records” related to noncitizen voters on the rolls. Federal notice requirements provide the County time to fix their refusal to comply with federal inspection rights before a lawsuit is filed.

Bexar County declined the PILF’s original request to inspect records related to registrants who were later removed following official discovery or admitted non-citizenship on December 14. Attorneys for the Election Administrator explicitly told PILF that if representatives appeared for inspection at County offices, they would be denied access.

The December 20 letter states, “the Bexar County Elections Administrator is hereby notified that it now faces federal litigation should they continue to deny access to requested records in their possession.”

Section 8 of the National Voter Registration Act of 1993 allows individuals to request inspection or seek copies of records related to “records concerning the implementation of programs and activities conducted for the purpose of ensuring accuracy and currency of official lists of eligible voters,” the PILF letters noted. 

“This is a terrible mistake on the part of Bexar County and an abrupt reversal on years of compliance with similar requests” PILF President and General Counsel J. Christian Adams said. “Other counties across Texas are complying with federal law. Either Bexar officials feel they are special or they have something embarrassing to hide. We will go to federal court if we must to obtain these public records.”

The Public Interest Legal Foundation has built a record case studies uncovering noncitizen voter registration and voting in a growing number of states.

  • In October 2016, PILF found noncitizens registered to vote in Philadelphia. Half of those voted in at least one election.
  • In May 2017, PILF found 5,556 voters removed by the Commonwealth of Virginia as “non-citizens”. Roughly 33% voted. This research followed an initial October 2016 sampling that yielded 1,000 noncitizens.
  • In September 2017, PILF found 1,069 noncitizens within New Jersey’s voter registration system.
  • In October 2017, PILF testified before the Pennsylvania House State Government Committee on the matter of noncitizen voting in the state and encouraged an official review to identify more ineligible voters. Testimony was taken again by the PA Senate State Government Committee in December 2017.
  • In December 2017, PILF put the State of Pennsylvania on notice for failing to release records related to noncitizens removed from the voter rolls. Litigation can commence as early as January 2018.

A copy of the data request letter can be found, here.

A copy of PILF’s final notice letter can be found, here.

Public Interest Legal Foundation (PILF) is a 501(c)(3) public interest law firm dedicated to election integrity. The Foundation exists to assist states and others to aid the cause of election integrity and fight against lawlessness in American elections. Drawing on numerous experts in the field, PILF seeks to protect the right to vote and preserve the Constitutional framework of American elections.

###

PILF Successfully Intervenes in Lawsuit Blocking Nevada Recall Efforts

PILF Helps Nevada Defend State Power to Run Own Elections

(LAS VEGAS, NV.) – December 21, 2017: The Public Interest Legal Foundation (PILF) successfully intervened in defense of Nevada’s recall procedures against a lawsuit from Hillary Clinton campaign attorney Marc Elias.

The United States District Court for the District of Nevada granted the PILF the right to help Nevada defend state recall laws in Luna v. Cegavske (2:17-cv-02666). The Court granted PILF leave to file its proposed answer to the plaintiffs’ complaint. The Court summarized its reasons for granting intervention thusly:

The Foundation seeks to challenge the Plaintiffs’ action under the Voting Rights Act on constitutional grounds that have not, as yet, been raised by the Defendants … [I]t has demonstrated an interest in the issues involved in the lawsuit sufficient to support permissive intervention. The Foundation also seeks to raise constitutional defenses to Plaintiffs’ claims that that have not been raised by the Defendants and which they may choose not to raise.

“States have the power to design their own election systems. Abusing the Voting Rights Act to attack state power is wrong and unconstitutional,” PILF President and General Counsel J. Christian Adams said. “The Voting Rights Act is not a law designed to help Democratic Party interests. PILF has been granted leave to make these in court. The true purpose of the Voting Rights Act was to stop racial discrimination, not to invalidate state laws that have nothing to do with race.”

The Foundation will make various arguments not otherwise made by the State of Nevada. An affirmative defense challenging the constitutionality of the foreign language provisions of the Voting Rights Act as applied is one of those arguments. Four primary defenses were introduced during initial intervention.

Section 2 of the Voting Rights Act is unconstitutional if applied to invalidate a recall election

If the Voting Rights Act were used to prohibit recall elections in Nevada and elsewhere, it would be an unconstitutional use of the Voting Rights Act. Plaintiffs’ claims that recall elections deny or abridge the right to vote for those within a “language minority” are far beyond what the Constitution would allow in this circumstance. “Speaking a language other than English is not the same, or even congruent to, inherent immutable characteristics such as race.”

Using disparate impact standards to block a recall would render a portion of the Voting Rights Act itself unconstitutional

Plaintiffs seek to use improper disparate impact statistical standards to invalidate state laws. Using mere statistical disparities to invalidate state laws would upset the Constitutional balance and constitute an unconstitutional application of the Voting Rights Act.

Plaintiffs offer inadequate facts ‘bearing no relevance’ to Voting Rights Act concerns

The brief states: “Most of the purported facts in the Amended Complaint are a jumble of talking points of various interest groups and academics long opposed to robust state control over elections and laws designed to promote election integrity. Taken together, they fail to state a plausible claim that the Defendants have violated Section 2.”

‘Language Minority’ Provisions of Section 2 of the Voting Rights Act are unconstitutional

Section 2 of the Voting Rights Act’s prohibition on discriminatory procedures or practices impacting “language minority” groups is unconstitutional on its face, given that it is inconsistent with the Fifteenth Amendment and “exceed[s] Congress’ authority to enforce the right to vote regardless of race.” 

The Motion to Intervene as Defendant and Proposed Answer by Defendant-Intervenor PILF filings can be found, here.

The order granting the PILF permissive intervention can be found, here.

Attorneys for the Public Interest Legal Foundation are J. Christian Adams and Joseph A. Vanderhulst. David O’Mara from the O’Mara Law Firm, PC serves as local counsel.

Public Interest Legal Foundation (PILF) is a 501(c)(3) public interest law firm dedicated to election integrity. The Foundation exists to assist states and others to aid the cause of election integrity and fight against lawlessness in American elections. Drawing on numerous experts in the field, PILF seeks to protect the right to vote and preserve the Constitutional framework of American elections.

###

Pennsylvania Continues to Conceal Extent of Alien Registration

State on Notice that Lawsuit to Disclose Records is Imminent

(HARRISBURG, PA.) – December 21, 2017: The Public Interest Legal Foundation (PILF) gave notice to the Pennsylvania Department of State that it could face a lawsuit in 20 days if it fails to reveal noncitizen registered voter records.

In a letter submitted to the PaDOS yesterday, officials were given final warning that they now face “federal litigation should [they] continue to deny access to the requested records” related to noncitizen voters on the state’s rolls. Federal notice requirements dictate that the State has 20 days to address PILF’s concerns before a lawsuit can be filed.

Pennsylvania election officials declined the PILF’s original request to inspect records related to registrants who were later removed following official discovery or admitted non-citizenship. After submitting two letters and as many site visits to inspect the information, the PaDOS denied any access on December 20, 2017.

The Pennsylvania Department of State refused to provide access to the records as federal law requires. The State also admitted in no uncertain terms that it has no “program in place” to identify and remove ineligible noncitizen voters. This admission follows various news reports about the unspecified “hundreds” of similar cases officially cropping up across the state and disclosures that poorly-designed Motor Voter procedures exposed every noncitizen driver’s license customer to voter registration since the 1990s.

“Why are Pennsylvania election officials stonewalling both the Legislature and our request for the facts about their colossal mistake?” PILF President and General Counsel J. Christian Adams said. “Noncitizens were discovered on the rolls in increasing amounts; Secretary of State Pedro Cortes resigned in a hush; and now the Department of State is hiding records from the public about ineligible registrants. We will go to federal court to get the records they are hiding if they don’t provide them in twenty days.”

PILF President Adams warned the Pennsylvania Senate State Government Committee on December 12 that recent failures to disclose records related to noncitizens could invite a lawsuit:

“I can report to this Committee that we are now experiencing … stonewalling from the State, and if our requests for data are not met, we will sue State election officials in federal court to obtain the information. This Committee can ask for the same information we have asked for.”

The Public Interest Legal Foundation has built a record case studies uncovering noncitizen voter registration and voting in a growing number of states.

  • In October 2016, PILF found 86 noncitizens registered to vote in Philadelphia. Forty of those voted in at least one election.
  • In May 2017, PILF found 5,556 voters removed by the Commonwealth of Virginia as “non-citizens”. Roughly 33% voted. This research followed an initial October 2016 sampling that yielded 1,000 noncitizens.
  • In September 2017, PILF found 1,069 noncitizens within New Jersey’s voter registration system.
  • In October 2017, PILF testified before the Pennsylvania House State Government Committee on the matter of noncitizen voting in the state and encouraged an official review to identify more ineligible voters.

A copy of the data request letter can be found, here.

A copy of the Department of State’s rejection letter can be found, here.

A copy of PILF’s final notice letter can be found, here.

Public Interest Legal Foundation (PILF) is a 501(c)(3) public interest law firm dedicated to election integrity. The Foundation exists to assist states and others to aid the cause of election integrity and fight against lawlessness in American elections. Drawing on numerous experts in the field, PILF seeks to protect the right to vote and preserve the Constitutional framework of American elections.

###

Social Media