When They Take Away Your Vote, Who Ya Gonna Call?
A Look at the Lawyers’ Committee for Civil Rights Under Law
A glimpse at the legal battles being fought against the type of voter suppression that is currently being exposed by WhoWhatWhy.
WhoWhatWhy continues to expose voter suppression across the country. With reporters on the ground in Georgia and Florida, and ongoing reports from North Carolina, North Dakota, and other places, readers are getting to witness first hand the impact on minority voters of rejection of absentee ballots, the extremes of “exact match,” the consolidation of polling places, photo ID laws, poor voting machine security, and other methods, all designed to devalue the vote.
Our stories, however, are only a first step. We can point out the problems but others have to take the next step and do something about them. That is why groups like the Lawyers’ Committee for Civil Rights Under Law are so important. They are fighting the legal battles in court on behalf of disenfranchised voters. Where once the US Justice Department might have stepped in to enforce the right of American citizens to cast their vote, now it has been left to outside lawyers — many working pro bono — to fend off ever more sophisticated voter suppression efforts.
In this week’s WhoWhatWhy podcast, Jeff Schechtman talks to Ezra Rosenberg, co-director of the Voting Rights project of the Lawyers’ Committee for Civil Rights. In many cases, after courts have intervened in favor of voters’ rights, legislatures have come back to tweak their suppression laws in an attempt to place further obstacles in the path of minority voters trying to exercise their franchise.
Still, there have been numerous successes — many of them based on reporters exposing suppression problems and groups like the Lawyers’ Committee for Civil Rights fighting in court for fair elections.
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| Jeff Schechtman: | Welcome to Radio WhoWhatWhy. I’m Jeff Schechtman. |
| For several years now, we’ve been inundated with fake news about alleged voter fraud. Fraud that simply does not exist anywhere in the country. However, these stories have been used as the basis and justification of voter suppression efforts in several states today. Efforts that may directly and adversely impact the outcome of some close races. These efforts take several forms — untenable voter ID laws, exact match, purging voters from the registration rolls, and many more tactics, all very specifically directed at suppressing the votes of African Americans and minority voters. | |
| There was a time when the federal government in the form of the Department of Justice would step in and try to right these wrongs. Not so today. As a result, we have to rely on independent legal groups and organizations of journalists like WhoWhatWhy to take up the challenge of these efforts, absorb the cost, and know how to redress the appropriate courts. Much of this legal work of late has been taken up by the Lawyers’ Committee for Civil Rights Under Law, and we’re going to spend some time today talking to my guest Ezra Rosenberg, who is the co-director of the organization’s Voting Rights Project. | |
| Ezra Rosenberg has been consistently ranked among one of the top litigators in the country. He’s been involved aggressively in pro bono representation, was one of the lead counsels challenging Texas’s photo ID laws, and was named to the National Law Journal’s Pro Bono Hit List for his role in significant public interest cases of national importance. It is my pleasure to welcome Ezra Rosenberg to Radio WhoWhatWhy. Ezra, thanks so much for joining us. | |
| Ezra Rosenberg: | Oh, my pleasure to be on. Thank you very much. |
| Jeff Schechtman: | First of all, tell us a little bit about the Lawyers’ Committee for Civil Rights Under Law, what its mission is, and a little bit about what it’s doing right now. |
| Ezra Rosenberg: | Sure. The Lawyers’ Committee, interestingly, was actually founded by John Kennedy back in 1963 at the suggestion of his brother, Robert. He called 250 members of the private bar to the East Room of the White House, sat them down, and said, “It’s about time you all started to do pro bono civil rights law.” As a result of that, the Lawyers’ Committee for Civil Rights was founded. It’s been in existence for over 55 years. Our mission is equal justice. We are oriented towards protecting the rights of minorities, particularly African Americans, in voting, education, criminal justice, economic justice, stop hate programs, and housing. |
| Jeff Schechtman: | Talk a little bit about your work in the voting rights area, how long have you been active in that area, and a little bit about how it’s increased so dramatically of late. |
| Ezra Rosenberg: | Sure. I’ve been active in it since around 2012 when I was still in private practice, and my firm Dechert, which does an amazing amount of pro bono work, allowed me to take on some substantial cases, particularly the first case was the Texas photo ID case. And I tried the case in Washington. At that time, Section 5 of the Voting Rights Act was in place, which prohibited any state from implementing any change in voting requirements without getting… These are states which have had a history of discrimination in voting. They have to get approval from either the Attorney General or a three-judge panel in Washington. So we tried that case, and the court found that the Texas photo ID law was discriminatory against black and Hispanic voters. |
| However, while Texas’ appeal was pending, the United States Supreme Court issued a decision in a case called Shelby County v. Holder, which gutted Section 5 of the Voting Rights Act. We then had to retry that case, and I was still in private practice at the time, under Section 2 of the Voting Rights Act, which put the burden on the plaintiffs to prove that the photo ID law was discriminatory. So we retried that case, and the rest is kind of history. After I left Dechert, the Lawyers’ Committee asked me to come down to Washington and work with them on voting rights. | |
| Jeff Schechtman: | There seems to certainly be of late an increase in the number of these voting rights cases, an increase in the amount of efforts taking place in quite a number of states to suppress the vote. Talk a little bit about what you’ve seen from your vantage point with respect to this. |
| Ezra Rosenberg: | Sure. We have seen this problem arise from the registration process through the voting process. In the registration process, most recently, we filed suit last week against the state of Georgia challenging its exact match process under which, if a space or a hyphen or a number is slightly wrong, slightly does not match between the voter’s application and notoriously inaccurate driver’s license databases and Social Security databases, that voter is placed on a pending status, and if he or she does not cure the deficiency within 26 months, they’re kicked off the rolls. So that’s a problem, and it’s a problem because it disproportionately impacts African American, Latinos, and Asian Americans because the statistics verify that 80% of the people on the pending list were members of minority groups. So that’s one area that we’ve seen problems. |
| Once people are on the registration rolls, we have to fight to keep them on. We have seen purges, purges based upon race, of people from the voting rolls. A couple years ago in a small county, Hancock County, Georgia, the Board of Elections there took it upon themselves to try to purge some 53 voters, 52 of whom were African Americans. We were able to get an injunction against that and ultimately a consent decree under which the county has to comply with the National Voter Registration Act before it removes people from the rolls. | |
| And once they’re on the rolls, we have to fight to get them to the polls. And you probably have heard over the past couple weeks, there are moves around the country of consolidating polls. So a couple of years ago in Macon-Bibb, Georgia, there was a move to move a polling place from a black school to the county sheriff’s office. And that we were able to work with our local groups to start a petition drive, which stopped that. Just three weeks ago in Randolph County, Georgia, there was an attempt to consolidate seven out of nine polling places, some of which were in predominantly African American neighborhoods. And again, with our local partners taking the lead and working a petition drive and other pressure and media pressure, fortunately, we were able to get that reversed. | |
| Ezra Rosenberg: | And then once people get to the polls, we want to make sure they can cast a ballot, and that’s where you have the problems with such things as strict voter ID laws, such as the one in Texas, which we were able to substantially change, the one in North Carolina, which other groups fought and were able to get eliminated entirely. You’ve probably heard about cases up in North Dakota where Native Americans are fighting a restrictive photo ID law. And these are popping up around the country. |
| Jeff Schechtman: | Tell us a little bit historically how these problems have been addressed in the past and the way traditionally that the Justice Department often was the one taking up these issues. |
| Ezra Rosenberg: | Sure. We had two real weapons that we no longer have to help us fight voter suppression and discrimination voting. One, as I mentioned, was Section 5 of the Voting Rights Act, which is no longer effective because the United States Supreme Court eliminated the formula under which states were selected to have to meet the requirements of Section 5, which would’ve required them to get federal approval before implementing changes in the Voting Rights Act. And that’s a serious problem not only because we can’t stop it but because now we don’t even hear of these problems all the time. In the past, the jurisdiction had to tell the Attorney General before it made a change and before it could implement the change, so there was a certain amount of transparency. We no longer have that. That’s a serious, serious problem. |
| And then second, as you alluded to in your opening, we had the Department of Justice and certainly in the past administration and even in other administrations both Democrat and Republican that fought to protect the rights of minority citizens by enforcing at the time Section 5 of the Voting Rights Act and Section 2 of the Voting Rights Act. We no longer have that. In the Texas photo ID case, for example, where the past administration’s Justice Department was a full partner with the civil rights organizations who were fighting the law, the day that this administration was sworn in, I received a call from the Department of Justice telling me that they were rethinking their position. And ultimately, they decided to withdraw their claim of discriminatory intent. | |
| In the Houston case, which was the case out of Ohio dealing with the purge of voters, the Department of Justice did a 180-degree flip on their position. In the past, they had attacked Ohio’s supplemental process of removing voters from the polls, from the register. And ultimately, in the Supreme Court under this administration, they supported Ohio’s position. So those are very, very serious changes, and it creates kind of a perfect storm in this area. | |
| Jeff Schechtman: | How have the courts responded to the various lawsuits that your organization and other independent organizations have brought with respect to these issues? |
| Ezra Rosenberg: | Well, I think on the whole we’ve had a very, very successful track record. Not just our organization but all of our brother and sister organizations. Of course, we are kind of holding our breath as the courts seem to be peopled with more and more doctrinaire jurists who have track records of not being solicitous of rights under the National Voter Registration Act, under the Voting Rights Act of 1965. And we’ve not been up there yet with this whole panoply of justices. |
| In the past year, the track record in the Supreme Court was not great. There was a case brought challenging the redistricting of the Texas congressional and state legislative districts. And there was an opinion written by Justice Alito, which reversed the finding that most of the redistrictings had violated Section 2 or were unconstitutional racial gerrymander. So that’s a problem. The Houston case that I mentioned last year also came out, which was also another serious setback in the voting rights area. | |
| Jeff Schechtman: | With respect to the Georgia situation, we have a case there, as many people may know, where the Secretary of State, the person responsible for putting these measures in place is the one running for higher office, and there’s a lot of push for him to recuse himself. Talk a little bit about where that stands and what the chances are of really being able to address that in any meaningful way. |
| Ezra Rosenberg: | Yeah. It’s a very, very difficult issue, and I’m not sure if the attempts to remove him or recuse him will be successful. We have not made such a motion. We have sued Secretary Kemp any number of times over the past three or four years. We have sued him under the exact match policy that he had implemented before there was a statute two years ago, and there was settlement under which we were able to get everyone, who had been put under pending status because of exact match, were able to vote a regular ballot. Unfortunately, the legislature then enacted a law which did the same thing as the policy that we were able to get eliminated by virtue of settlement. The problem is not just Kemp. The problem is legislatures that are passing laws that are voter suppressive. |
| Jeff Schechtman: | To what extent have the various groups in places like Georgia or North Carolina or North Dakota or any of these places, to what extent have they responded to court rulings that have been favorable in some cases? |
| Ezra Rosenberg: | Well, in North Carolina, for example, the day the Shelby decision was issued, the decision that eliminated enforcement of Section 5 of the Voting Rights Act, the day after, the North Carolina legislature passed the omnibus voting law, which ultimately was declared to be illegal, unconstitutional, and violative of Section 2 of the Voting Rights Act. In Texas, the day Shelby came out, the Attorney General of Texas announced he was implementing the Texas voter photo ID law, which the three-judge panel in the District of Columbia had found to be discriminatory. So the reaction of decisions that are favorable to those who would seek to suppress votes is unfortunately typically immediate. |
| Jeff Schechtman: | Talk a little bit about what’s happening in Florida right now. |
| Ezra Rosenberg: | We have a suit in Florida that we just filed last week together with the ACLU and the Advancement Project. It’s to try to get extended the time to register to vote for those counties in Florida that have been seriously impacted by Hurricane Michael. The Secretary of State to Florida had issued a directive, which we did not think went far enough in terms of protecting the rights of those people. I think there’s going to be some announcement today on that, which may or may not shed light. But that’s one thing that’s going on. |
| The second thing, which is a huge issue, is the vote in Florida, of course, on re-enfranchisement of those who have been convicted of felonies but have completed their sentences. And that is a huge issue because there are well over a million Floridians who should have the right to vote and don’t, even though they have paid their debt to society. And in many of these cases, these are drug possession cases. And it just boggles the mind to think that there’s very often a mistake made when someone was relatively young, it stops that person from forever voting in this country. It just is … I don’t think that’s what Americans really feel is right, so that’s going to be a huge issue at the polls in Florida this year. | |
| Jeff Schechtman: | To what extent are there enough resources, from groups like yours and some of your colleagues in other groups, enough resources to fight all of these various battles in so many states right now? |
| Ezra Rosenberg: | Well, particularly without the aid of the Department of Justice, it is tough. There are many, many terrific groups, not just national groups like ours and the ACLU and Legal Defense Fund and Brennan Center and any number of other organizations, but also local organizations who are fighting hard every day to ensure the right to vote. But none of the organizations have unlimited resources, and the problems are so many and across all 50 states that, obviously, help is needed. We at the Lawyers’ Committee for Civil Rights rely on donations from the public, from interested people who, like our board members, and obviously, look for help whenever we can. These are not huge organizations by and large, and certainly their resources are dwarfed by the resources of the state governments and even the local governments that we often have to fight. |
| Jeff Schechtman: | Talk a little bit about what you expect the landscape might look like if in fact some of these races in places like Texas and Georgia and a few other states turn out to be exceedingly close, and there’s some real question as to how these elections were conducted with respect to many of the issues that we’re talking about. What does that post-election landscape look like from your point of view? |
| Ezra Rosenberg: | It’s so tough to predict. And much of that is fought out between the candidates. But obviously, there will undoubtedly be allegations that there were fraudulent voters or non-citizens voting. And the fact is, as you said earlier, that that just doesn’t happen. And by the way, if it ever happens, it is invariably administrative or election official mistake, not intent on behalf of the voter. So we can expect to see some of that after the elections, I assume, but again, there is not a lot of credibility to those allegations. |
| Jeff Schechtman: | Will we see potentially a great many lawsuits following some of these elections? |
| Ezra Rosenberg: | My guess is in close elections, you will see lawsuits, but many of them will be filed by parties. We at the Lawyers’ Committee for Civil Rights Under Law, we are non-partisan. Our goal is to make sure people vote and to protect the votes of minority citizens against voter suppression and vote discrimination. Obviously, if there has been a problem with people voting because of voter suppression and independent of any political party, we would certainly consider taking the appropriate action. |
| Jeff Schechtman: | What is your group doing to try and guarantee that the conduct of the election itself has integrity? How are you addressing concerns about machines, lack of paper trail in some cases? To what extent is any of this part of the legal work that you’re doing now or planning to do? |
| Ezra Rosenberg: | Well, at the Lawyers’ Committee for Civil Rights Under Law, we have the largest election protection process in the country. Our hotline, 866-OUR-VOTE, and it’s also in Spanish and Arabic and several Asian languages, is a 24-hour hotline. Since day one of 2018, we have been open for business. We’ve gotten thousands of calls throughout the very busy primary season, and we deal with all of these sorts of issues where machines break down, not enough ballots. Cybersecurity is a huge problem, which we don’t handle through the hotline, but there are other organizations that are devoted to the issues of cybersecurity, and we are keeping an eye on those issues. |
| Jeff Schechtman: | And finally, talk a little bit about Georgia right now and this surge that we have seen in early voting and how you think that’s related to what some of these concerns are. |
| Ezra Rosenberg: | Well, I think it’s kind of the flip coin of it, it’s heartening to see that there’s a surge in early voting because it proves what we and other organizations have been saying over the years, that what one has to do is broaden the right to vote, not put up barriers to vote. People want to vote in this country. We have an abysmally low turnout percentage, and part of it is because we only allow people to vote on one day a year for certain hours. And many people, particularly those who are on hourly jobs, who have childcare responsibilities, who don’t have easy access to transportation, find it very, very difficult to come in just that one day to vote. And early voting is a huge boon to those who want to vote but otherwise are not allowed to vote. And before when we were talking about obstacles to vote, another thing that we have seen this happen in North Carolina was a cutback in early voting, and that shouldn’t happen. We should be doing everything possible to help people vote, not to stop them from voting. |
| Jeff Schechtman: | Ezra Rosenberg. He’s the co-director of the Voting Rights Project of the Lawyers’ Committee for Civil Rights Under Law. Ezra, as we’re all working for the common goals of voter integrity, I thank you so much for spending time with us here on Radio WhoWhatWhy. |
| Ezra Rosenberg: | My pleasure. Any time. |
| Jeff Schechtman: | Thank you. And thank you for listening and for joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate. |
Related front page panorama photo credit: Yoichi Okamoto / Wikimedia
