Behind the ballot box battle in Pennsylvania

One of this summer’s more interesting legal developments has been a series of rulings on Republican-backed legislation that federal judges have found to be designed to disenfranchise black and Latino voters.

In July, a federal court in Richmond struck down North Carolina’s voter ID law, finding that its primary purpose wasn’t, as its proponents averred, to prevent voter fraud but rather to disenfranchise voters. Enacted by a Republican-led legislature and Republican Gov. Pat McCrory, the law was found to, according to the court, “target African Americans with almost surgical precision.” Last month, in Wisconsin, federal judges eased restrictions on voter ID requirements signed into law by Republican Gov. Scott Walker, saying that the law’s “preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement.” (A U.S. appeals court suspended the ruling earlier this month, although in another federal case, a judge struck down voting restrictions enacted by the state’s Republican-led legislature for disenfranchising minority voters.)

In June, a Reuters investigation revealed that Ohio had removed tens of thousands of voters from registration lists because they hadn’t voted on a regular basis (since 2008). “Voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods,” Reuters reported. “In the three biggest counties, at least 144,000 voters have been removed.” This is in addition to a federal judge’s June ruling that the state’s laws on absentee and provisional ballots were unconstitutional.

While the Reuters analysis specifies that the Ohio effort “doesn’t appear to be driven by one specific party,” an effort to purge voter rolls in Philadelphia has been undertaken by the Public Interest Legal Foundation on behalf of the American Civil Rights Union (ACRU), and a scan of both organizations’ boards of directors reveals that the majority of those involved have Republican and/or conservative bona fides.

On April 4, the ACRU filed a complaint against the Philadelphia City Commissioners, who oversee voting rolls, claiming they had not allowed the ACRU to inspect voting records for fraud. Two weeks later, the city filed a motion to dismiss the lawsuit for lack of jurisdiction and other procedural reasons, according to Mary Catherine Roper, the deputy legal director of the American Civil Liberties Union (ACLU) of Pennsylvania.

“The judge never got around to making a decision on the motion to dismiss the original complaint,” Roper explained. On July 11, “ACRU files a motion saying the city won’t meet to plan discovery (exchange of documents and testimony),” and on July 20, the “ACRU files a motion to file an amended complaint that includes the original claim about inspecting records and adds the claim that Philly isn’t purging felons from the voter rolls.” That same day, the ACRU also ”files a motion asking for a preliminary injunction to force the commissioners to purge the voter rolls of felons immediately. A preliminary injunction is a way of getting the goal of your lawsuit at the beginning.”

Then, on July 21, federal judge C. Darnell Jones II “issues order allowing ACRU to file the amended complaint,” Roper said. “He denies as moot the motions that were already pending on the original complaint (an amended complaint starts the lawsuit all over again, in effect). As for the motion for a preliminary injunction, the judge suggests that it is frivolous and directs ACRU to tell him, by Aug. 4, why he should not deny the motion for preliminary injunction and sanction ACRU for filing a frivolous motion.”

But things have gone the ACRU’s way since then. The group handed in an affidavit from an election specialist attesting that reassessing the voter rolls and removing people who do not qualify, specifically incarcerated felons, is a reasonable interpretation of the National Voter Registration Act, and the judge gave the city and the ACRU until Sept. 9 to submit formal briefs explaining their sides.

Christian Adams, president of the Indiana-based Public Interest Legal Foundation, said the amended complaint was filed because “Philadelphia has been doing nothing in response to felony convictions for those who are ineligible to vote.”

“The city is undertaking no effort whatsoever to remove ineligible felons,” Adams added. “Felon voting is a problem nationwide. Some elections have had ineligible felons make the difference in the election.”

Since the lawsuit is ongoing, Andrew Richman – the chief of staff of City Solicitor Sozi Pedro Tulante – said the city could not comment on any aspect of the pending litigation. But according to Roper, the ACLU’s latest information is that “Philly is complying with its obligations under the National Voter Registration Act.”

Moreover, Roper added, “I can say that I don’t understand the point of ACRU’s claim. In Pennsylvania, incarcerated felons cannot vote but those who have been paroled can vote. So it would make no sense to purge felons as soon as they are convicted – they could be paroled before the next election. And if they aren’t, well, then they won’t be able to get to the polling place anyway. I have never heard of anyone trying to vote absentee from a state prison. It seems ACRU is trying to make a fuss over a non-issue. The only thing that purging those names would accomplish is to keep them from voting when they are released – when they are entitled to vote.”

The ACRU’s actions seem to be setting the stage for the organizations to contest the vote in Philadelphia on Nov. 9 – the day after the election – à la Florida during the 2000 presidential election.

Why Philadelphia? Simply put, because it is a Democratic stronghold, and also a majority minority city. The sad truth about our criminal justice system is that it disproportionately targets and incarcerates people of color – mostly African-Americans and Latinos – and purging so-called “felons” without regard for whether parole or re-entry makes their vote legitimate would certainly disenfranchise the same demographic as the Ohio purges and voter ID laws in North Carolina and Wisconsin did.

Philadelphia isn’t the only city where the Public Interest Legal Foundation and the ACRU are filing this kind of lawsuit. Adams said they have filed claims in “lots of other places.” South Florida’s Broward County is one of them.

Like Pennsylvania, Florida is expected to be a swing state in the election, and Broward County, which includes Fort Lauderdale, is its second-most populous county, accounting for 9.2 percent of the state’s population. And, according to the 2010 census, 25.7 percent of the total population of the county is black; another 26.1 percent is Latino; and 50 percent of the population is registered Democratic – making it a strongly Democratic, majority minority county.

Broward County was also one of three counties where votes were still being manually counted when Florida’s Republican Secretary of State Katherine Harris “certified” George W. Bush the winner in Florida in the contested 2000 presidential election against Al Gore.

“What’s past is prologue,” Shakespeare wrote in “The Tempest.”

And with the confluence of elements in place, it is impossible to dismiss that idea. It does seem the ACRU is hoping – and doing everything in its power – to make sure that come Nov. 9, we are embroiled in a political tempest that is the culmination of a long game, methodically played. ■