March 06, 2014
By Kara Brandeisky
Special to the NNPA from ProPublica
When the U.S. Supreme Court struck down a key part of the Voting Rights Act last June, justices left it to Congress to decide how to fix the law. But while Congress deliberates, activists are turning again to the courts: At least 10 lawsuits have the potential to bring states and some local jurisdictions back under federal oversight – essentially doing an end-run around the Supreme Court’s ruling.
A quick refresher: The Voting Rights Act outlaws racial discrimination against voters. But the law’s real strength comes from its “preclearance” provision, which forces jurisdictions with a history of racial discrimination to submit new voting measures to the federal government for approval.
In last summer’s Shelby County v. Holder ruling, the Supreme Court threw out the part of the law that spelled out when states were automatically subject to federal oversight. States that have been released from preclearance have already passed a rash of new restrictive voting measures, as ProPublica reported earlier.
Enter the lawsuits, which hinge on a different part of the Voting Rights Act, the so-called“bail-in” provision. It lets federal courts impose preclearance if a state or local jurisdiction violates the Constitution’s 14th or 15th amendments, which guarantee equal protection and the right to vote.
While the “bail-in” provision has emerged as the new tool of choice for voting rights activists, it is not as sweeping a remedy as the oversight authority the Supreme Court dismantled.
Before the ruling, states, counties and other jurisdictions that were subject to preclearance had to get every single voting change approved – whether they wanted to require a photo ID to vote, change voting hours on Election Day or move even a single polling place. Under “bail-in,” the court can tailor oversight to the situation. A state that enacts an unfair redistricting map, for example, may only need to submit its next map for federal approval.
To prevail in court, plaintiffs must prove a jurisdiction intentionally crafted laws or rules to discriminate against minorities. Although that’s not an easy standard to meet, it’s been done before: In the nearly 50 years before Shelby County v.Holder, courts imposed federal oversight requirements at least 18 times after finding that minority rights had been violated.
So far, the Justice Department has joined two lawsuits against Texas and has launched its own case against North Carolina. Following is a rundown on all the lawsuits, and an update on the effort in Congress to amend the Voting Rights Act after last year’s court ruling.
Michael Li, a Dallas election law lawyer who runs a blog that exhaustively tracks Texas election news, thinks “there’s a decent chance” Texas will be put under federal supervision— since a federal court already ruled that the state’s Congressional and state Senate redistricting maps were intentionally discriminatory. But ultimately, he expects the question will be kicked up to the U.S. Supreme Court.
Perez et al. v. Perry et al.: Hispanics accounted for 65 percent of population growth between 2000 and 2010 in Texas. But when the Republican-led legislature drew congressional boundaries after the 2010 census, a federal court found that the maps favored white Republican incumbents and had a “discriminatory intent.” After Shelby County v. Holder, Texas said it would use the contested maps anyway. A coalition of voting rights advocates has asked the court to put Texas back under supervision, and the Justice Department joined in.
Veasey et al. v. Perry et al.: The day the Supreme Court freed Texas from federal oversight, Gov. Rick Perry announced his intent to enact a photo ID law that the Justice Department and a federal court had refused to approve. Rep. Marc Veasey, D-Texas, sued the next day. Veasey and supporters – including the League of United Latin American Citizens and Dallas County – say the law discriminates against minority voters, who, by the state’s own admission, are less likely to possess an eligible ID. The plaintiffs want to put the entire state back under preclearance, and the Justice Department’s photo ID lawsuit was merged with this case.
Petteway et al. v. Galveston County: Five local elected officials, led by Constable Terry Petteway, sued Galveston County, arguing that the county gerrymandered their districts to discriminate against Latino and African-American candidates. The officials have asked a federal court to throw out the map and put Galveston County back under federal oversight.
Cantue et al. v. Beaumont Independent School District: This case targets a school district. After years of legal battles over voting maps, a group of Beaumont citizens who believe the district has discriminated against black voters wantpreclearance of all election changes.
Under bills in the House and Senate to amend the Voting Rights Act, four states and two counties would face federal oversight because they’ve committed too many “voting rights violations” over the past 15 years
Almost two months after the Shelby County v. Holder ruling, North Carolina passed a bill that requires voters to show photo ID, shortens the early voting period, eliminates same-day registration and instructs election officials to throw out any ballots cast in the wrong precinct, among other restrictions. Now three different lawsuits ask to put North Carolina back under preclearance.
North Carolina State Conference of the NAACP et al. v. McCrory et al.: The plaintiffs say the law discriminates against African-American voters, who are less likely to have a photo ID, more likely to vote earlyand who historically have cast more out-of-precinct ballots.
League of Women Voters et al. v. North Carolina et al.: The League of Women Voters is particularly concerned about the law’s early voting restrictions. The complaint says that in 2012, almost 20 percent of the electorate cast ballots during the early voting days that the legislature eliminated in 2013. The League contends that shortening the early voting period unfairly burdens poor and minority voters and will increase waiting times for all.
U.S. v. North Carolina et al.: In September, the Justice Department filed its own lawsuit. The complaint notes that from 1980 to 2013, the Justice Department objected to 60 of the 155 voting changes that North Carolina submitted for preclearance.
Terrebonne Parish Branch NAACP et al. v. Jindal et al.: Five judges on the 32nd Judicial District Court are elected at-large by majority vote. A Black candidate has never won. Now, the Terrebonne Parish Branch NAACP argues that the at-large scheme dilutes the Black vote and that racial discrimination continues to the current day. As an example, the plaintiffs assert that in 2004, a sitting judge was suspended for attending a Halloween party dressed in blackface and an orange prison jumpsuit – only to be re-elected in 2008. The plaintiffs ask the court to require preclearance for the 32nd Judicial District.
Toyukuk et al. v. Treadwell et al.: In 1975, Congress expanded the Voting Rights Act’s coverage formula to include places that offered English-only election materials when at least 5 percent of voting-age citizens spoke a different language. Now, a group of Native Americans says Alaska failed to provide voting materials and voting assistance in their native language Yup’ik and its dialect Cup’ik. The group wants the Justice Department to oversee language assistance procedures in the Dillingham and Wade Hampton census areas.
Jackson et al. v. Wolf Point et al.: Since Shelby County v. Holder, voting rights advocates have tried to sanction one jurisdiction that has never been under federal oversight – a school district in Montana. Voters in Wolf Point School District 45A say that the county superintendent’s office packed Native Americans into one malapportioned district to dilute their vote. They ask a federal judge to force the school district to create a new redistricting plan and require that the school districtsubmit its 2020 redistricting plan to the Justice Department for approval.
Congress and Voting Rights Act
While the lawsuits play out in the states, Congress is considering a new proposal to rewrite the Voting Rights Act provisions that trigger federal oversight.
Legislation in both the House and Senate would make it easier to “bail-in” new states: Courts could institute preclearance if a jurisdiction violated any federal prohibition on voting discrimination, not just the Constitution. That way, plaintiffs would not have to prove the discrimination was intentional.
In addition, the bills would change which states are automatically subject to federal oversight. States that are sanctioned for five “voting rights violations” in 15 years would need to submit new voting measures for federal approval. “Voting rights violations” would include any time a voting measure violates the 14th or 15th amendments or Voting Rights Act, and any time the Justice Department or a federal court rejects a voting measure that had been submitted for preclearance.
The new formula would also cover counties, townships and other political subdivisions that have three violations over the 15 years, or just one violation combined with consistently low minority turnout.
Under those criteria, four states and two counties would be subject to preclearance today: Texas, Louisiana, Mississippi, Georgia, Charleston County, S.C., and Northampton County, Va.
The bill’s prospects are uncertain. The House version, introduced by Rep. James Sensenbrenner, R-Wis., has support from seven Republicans and 13 Democrats. But so far, the identical Senate version, introduced by Sen. Patrick Leahy, D-Vt., has no Republican co-sponsors. A Leahy aide said the senator “continues reaching out to Senate Republicans to join these important efforts.”
February 27, 2014
By MARK SHERMAN
WASHINGTON (AP) — The Supreme Court ruled Tuesday that police may search a home without a warrant when two occupants disagree about allowing officers to enter, and the resident who refuses access is then arrested.
The justices declined to extend an earlier ruling denying entry to police when the occupants disagree and both are present.
Justice Samuel Alito wrote the court’s 6-3 decision holding that an occupant may not object to a search when he is not at home.
“We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason,” Alito said.
Police found a shotgun, ammunition and a knife when they searched the Los Angeles apartment that Walter Fernandez shared with his girlfriend, Roxanne Rojas.
Fernandez told police they could not enter. But shortly after his arrest, officers returned to the apartment and persuaded Rojas to let them in.
Fernandez is serving a 14-year prison term on robbery and guns charges.
Justice Ruth Bader Ginsburg wrote in dissent that “Fernandez’s objection to the search did not become null upon his arrest and removal from the scene.”
The court ruled 5-3 in 2006 that when two occupants who disagree about letting the police in are present, the objecting occupant prevails.
Ginsburg, joined by Justices Elena Kagan and Sonia Sotomayor, also took issue with the notion that ruling for Fernandez would harm women who are victims of domestic violence.
Ginsburg said that police are justified in the immediate removal of the abuser from the premises. That, she said, is what happened in this case. But that shouldn't trump the need for a warrant to overcome Fernandez’s objection to the search of his home
When Rojas first answered the door for police, she was crying and holding her 2-month-old baby. She had a fresh bump on her nose, and blood on her hands and shirt. She said she had been in a fight.
At that point Fernandez appeared and ordered the police to get out, telling them he knew his constitutional rights. The police believed the couple had just been in a fight and removed Fernandez from the apartment in handcuffs. An officer noticed a tattoo on Fernandez’s shaved head that matched the description of a robbery suspect. Fernandez soon was arrested.
California maintained in its argument at the court that police had enough evidence at that point to get a warrant. But they said one was unnecessary because Rojas had the authority to let them in, despite Fernandez’s earlier objection.
The court agreed with that proposition Tuesday.
The case is Fernandez v. California, 12-7822.
February 27, 2014
By Jennifer Bihm
John Punch is the first known slave in the United States and he is believed to be the ancestor of President Barack Obama. He arrived in the Virginia colony in the 17th century, one of a handful of indentured servants belonging to Virginia planter, Hugh Gwyn. In 1640 he attempted to escape Gwyn, along with two European indentured servants but was caught and sent back.
Punishment for the two Europeans was four years longer of servitude. But a judge ordered Punch to serve out the rest of his natural life to Gwyn. This incident is believed to have set the precedence for the institution of slavery in America.
It’s also the first documented case of differences in treatment based on race in America. According to historians, Punch had children with a white woman most likely an indentured servant (which was a common occurrence during the time).The children inherited the mother’s free status, causing legislators at the time to reconsider the slavery laws (children usually held the status of the father).
Most likely, said historians drawing from documents, and Y-DNA analysis, Punch’s descendants were called Bunch.
“Before 1640, there were fewer than 100 African men in Virginia, and John Punch was the only one with a surname similar to it,” they said.
“The Bunch descendants were free people of color who became successful landowners in Virginia. Some lines eventually assimilated as white, after generations of marrying whites.”
In the early 1700s, a man called John Bunch III, a mulatto, asked the court to publish proclamation of marriage to a white woman called Sara Slayden, causing another rule change, mulattos were now considered black, no matter what percentage of white DNA they had. Bunch didn’t marry Slayden, however, historical records show him fathering children with another white woman called Rebecca.
“He had moved to Louisa County as part of the westward migration of colonists to the frontier of Virginia.,” said historians from Ancestry.com.
“Through continued intermarriage with whites in Virginia, the line of Obama’s maternal Bunch ancestors probably appeared as and identified as white as early as 1720. Members of this line eventually migrated into Tennessee and ultimately to Kansas, where descendants included Obama’s maternal grandmother and his mother Stanley Ann Dunham.
“Another branch of the Bunch family migrated to North Carolina, where they were classified in some records as mulatto. They intermarried with people of a variety of ethnicities, including European. The Bunch or Bunche family was established as free before the American Revolution. The Bunch surname lines also became associated with core mixed-race families later known as Melungeon in Tennessee.
“Y-DNA testing of descendants of the Bunch family lines has revealed common ancestry going back to a single male ancestor of sub-Saharan African ethnicity. Genealogists believe this male ancestor to be John Punch the African. He was probably born in present-day Cameroon in West Africa, where his particular type of DNA is most common…”
In July 2012, Ancestry.com officials determined that President Barack Obama is an eleventh great grandson of Punch.
February 27, 2014
By PAUL ELIAS
SAN FRANCISCO (AP) — Nearly 1,400 lifers in California's prisons have been released over the past three years in a sharp turnaround in a state where murderers and others sentenced to life with the possibility of parole almost never got out.
Since taking office three years ago, Gov. Jerry Brown has affirmed 82 percent of parole board decisions, resulting in a record number of inmates with life sentences going free.
Brown's predecessor, Arnold Schwarzenegger, authorized the release of 557 lifers during his six-year term, sustaining the board at a 27 percent clip. Before that, Gov. Gray Davis over three years approved the release of two.
This dramatic shift in releases under Brown comes as the state grapples with court orders to ease a decades-long prison crowding crisis that has seen triple bunking, prison gyms turned into dormitories and inmates shipped out of state.
Crime victims and their advocates have said the releases are an injustice to the victims and that the parolees could pose a danger to the public. More than 80 percent of lifers are in prison for murder, while the remaining are mostly rapists and kidnappers.
"This is playing Russian roulette with public safety," said Christine Ward, executive director of the Crime Victims Action Alliance. "This is a change of philosophy that can be dangerous."
The governor's office said the overcrowding crisis plays no role in the parole decisions. Rather, the governor's office said, each case is addressed individually and Brown is bound by court orders that require state officials to ease the stringent parole requirements that have dramatically increased the time murderers spend in prison.
Today, an inmate convicted of first-degree murders can expect to serve an average of 27 years — almost twice what it was two decades ago before California became the fourth state to give governors the politically fraught final decision on lifer paroles.
Since then, the number of lifers has grown from 9,000 to 35,000 inmates, representing a quarter of the state prison population. But two seminal California Supreme Court rulings in 2008 have significantly eased tough parole restrictions.
The court ordered prison officials to consider more than the severity of the applicant's underlying crimes. It ruled that inmates' records while incarcerated plus their volunteer work should count heavily in assessing early release.
State figures show that since the rulings, the board has granted parole to nearly 3,000 lifers, including 590 last year and a record 670 in 2012. In the three decades prior to the 2008 rulings, only about 1,800 such prisoners were granted parole.
Davis allowed only two inmates released out of 232 board decisions granting parole between 1999 and 2002. Schwarzenegger sustained the board at a 27 percent clip during his seven years in office when he was presented with 2,050 paroles granted by the board.
Brown has allowed 82 percent of the 1,590 paroles granted by the board.
Brown's office says he is operating under a different legal landscape than previous governors, and that he is following court rulings and a 23-year-old state law that gave governors the power to block paroles of lifers who the state board found suitable for release.
A Stanford University study of lifer paroles between 1990 and 2010 found that a murderer had a 6 percent chance of leaving prison alive since governors were given the power to veto board decisions.
Gov. Pete Wilson, the first governor vested with veto power, used it sparingly, though the parole board was approving just a few dozen paroles a year compared with the hundreds the board has been approving in recent years.
Between 1991 and when he left office in January 1999, he approved 115 of the 171, or 67 percent, of the lifers the board found suitable for release.
"If an individual is eligible for parole and the board determines they are no longer a threat, the law says they must be paroled unless there is firm evidence indicating they are still a threat," Brown spokesman Evan Westrup said.
The few studies of recidivism among released lifers including a Stanford University report show they re-offend at much lower rates than other inmates released on parole and none has been convicted of a new murder.
Of the 860 murderers paroled between 1990 and 2010 that Stanford tracked, only five inmates committed new crimes and none were convicted of murder. The average released lifer is in his mid-50s. Experts say older ex-cons are less prone to commit new crimes than younger ones.
Brown has reversed the parole board. On Friday, his office announced it blocked the parole of 100 inmates deemed fit by the board for release and sent two others back to the board for reconsideration.
One of those inmates found fit for release by the board but blocked by Brown was James Mackey, a former University of Pacific football player found guilty of shooting his victim with a crossbow and then strangling him. Brown said Mackey hasn't sufficiently owned up to the crime.
"Until he can give a better explanation for his actions," Brown wrote, "I do not think he is ready to be released."
Ernest Morgan on the other hand, is a lifer Brown did let free.
Morgan, a San Francisco man convicted of the shotgun slaying of his 14-year-old stepsister burglarizing the family home, was turned down for parole five times before the board granted him parole, only to be overruled by Schwarzenegger.
Schwarzenegger wrote that Morgan posed "a current, unreasonable risk to public safety." And he noted that Morgan had at one point claimed that the shotgun had gone off accidentally, although he later acknowledged his guilt to the parole board.
"So I was devastated when Schwarzenegger denied my release," said Morgan, who now is majoring in business management at San Francisco State. "I felt I was a political pawn who would never get out."
In 2011, Brown approved his release after 24 years in prison. Brown made no comment in granting Morgan his release. Instead, the governor signaled his approval by taking no action within 30 days of the parole board's decision becoming official.
"It's been a remarkable and unexpected change," said Johanna Hoffman, Morgan's lawyer who has represented hundreds of lifers vying for parole since becoming a California lawyer in 2008. "The overcrowding issue has a huge amount to do with it."