A trio of lawsuits brought by the NAACP, the League of Women Voters, the U.S. Department of Justice and an array of individual plaintiffs began court proceedings on July 13.
At issue are VIVA’s repeal of same-day registration, pre-registration of 16-and-17-year-olds, and the elimination of 7 days of early voting and out-of-precinct ballots. The plaintiffs claim the sweeping elections overhaul is unconstitutional and violates Section 2 of the Voting Rights Act.
Lawyers representing both sides gathered to present their final arguments to Judge Thomas D. Schroeder on Friday morning.
“Blood, sweat and tears”
Plaintiff’s attorney Daniel T. Donovan began by saying the Voting Rights Act was the result of the “blood, sweat and tears,” of many people.
He said the provisions repealed by VIVA were not “mere conveniences,” but necessary mechanisms to help African American voters overcome a long history of discrimination.
Donovan’s presentation quickly became a dialogue as Judge Schroeder began asking questions from the bench. The Judge asked Donovan if he thought states that introduced same-day registration and early voting should be forbidden to repeal them.
He called that idea “a one-way ratchet.”
“Once you do it, you’re never going back,” he said.
Donovan said people were stunned that VIVA ended so many successful voting laws all at once.
Judge Schroeder agreed that “government should make it easier for people to vote,” but said he was struggling to find a standard to measure equal opportunity at the polls.
In his arguments, Plaintiff’s attorney Bert Russ said just when same-day registration, early voting and out-of-precinct ballots were helping African American voters gain more political power “the legislature stepped in” with VIVA’s sweeping overhaul.
“Voting is not a zero-sum game,” Russ said.
The Judge asked Russ how to measure equal opportunity at the ballot box.
“Your job is to remedy the violations in front of you,” Russ replied. He added it was hard to imagine any other remedy than restoring the provisions ended by VIVA.
“Completely unprecedented”
Defense attorney Thomas Farr called the Plaintiff’s demands ” completely unprecedented.”
He said the Plaintiffs were ordering the state to take up certain practices in order to maximize minority participation.
He said no one had given “any sort of tangible proof” that VIVA had suppressed voter turnout. He rejected arguments that early voting, same-day registration and out-of-precinct ballots were necessary to level the playing field for low-income voters.
If voting laws had to address all the challenges facing poor voters “there would be no end to it,” he said.
Judge Schroeder said same-day registration and early voting were popular with the public.
“The point is, they made voting easier,” he said. “Government should make voting easier.”
Judge Schroeder said he was struck by the lack of debate when he read legislative transcripts dealing with the passage of VIVA.
“It sure puts the legislature in a difficult position,” he said.
Defense Attorney Alexander Peters said the disputed provisions should be seen as “policies” and should be settled in the legislature, not a court of law.
“What you have before you in this case is a question of different policy priorities,” he said.
Judge Schroeder said the Plaintiffs found those policies threatening. He paraphrased their objections:
” ‘Even if you weren’t aiming at us, it sure feels like it’,” he said.
A written decision is expected sometime in the coming weeks.
