“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link

 

At least three of Trump Eleventh Circuit judges Kevin Newsom, Britt Grant, Barbara Lagoa, and Robert Luck joined with Trump judge Elizabeth Branch in casting deciding votes to refuse full court rehearing of an earlier Branch ruling that upheld an Alabama voter ID law despite claims that it is racially discriminatory. The June 2021 decision is Greater Birmingham Ministries v Secretary of State.

Last July, as reported in this blog, Trump judge Branch wrote a 2-1 decision that affirmed a lower court ruling dismissing a challenge to an Alabama voter ID law. This was despite the fact that even Branch conceded that Black voters were twice as likely as white voters to lack voter ID that the state considered acceptable and that, as the dissenting judge explained, the lower court judge granted summary judgment for the state despite “genuine issues of material fact” as to the racial impact of the law, the discriminatory intent behind it, and whether there was any real evidence of in-person voter fraud that allegedly justified the law. A request was made that the full Eleventh Circuit should vacate Branch’s opinion and reconsider the case.

Almost a year later, in June 2021, the full court voted not to rehear the case and to let Branch’s decision stand. The court did not release information on how all the judges voted, but it did state that a majority of the 11 judges who considered the case “voted against” rehearing, and since we know that four judges stated that they dissented from the denial of rehearing, Branch voted to deny it, and there are only two other active judges not nominated by Trump on the court, at least three out of Trump judges Newsom, Grant, Lagoa and Luck must have also declined to rehear the case.

In an extensive dissent for herself and three other judges, Judge Beverly Martin explained what was wrong with Branch’s panel decision and the full court refusal to rehear the case. Initially, she noted that the panel decision was wrong to rely on the Supreme Court’s decision upholding an Indiana voter id law in the Crawford case because that case, unlike this one, did not involve claims of racial discrimination. Branch tried to defend her reliance on Crawford, claiming that “we are bound to follow it” as “Supreme Court precedent.” As Martin explained, however, three other courts of appeal have rejected reliance on Crawford to uphold voter ID requirements claimed to be racially discriminatory as “misplaced.” When there is “evidence of discriminatory intent” as in this case, Martin went on, a state is “not owed the deference that Crawford otherwise affords state election laws.” This error alone has potentially important harmful effects in the other two states in the Eleventh Circuit, Georgia and Florida.

In addition, in another error that could have harmful effects in other voting rights cases, Martin faulted Branch’s ruling for “rejecting the applicability” of the Supreme Court’s so-called Gingles factors in resolving the claim about whether the Alabama law violated section 2 of the Voting Rights Act. In its Gingles decision, the Court explained that in deciding a Section 2 claim that a state’s actions have a discriminatory effect on minority voters, a court should consider a number of factors, including whether minority voters tend to vote similarly, whether majority voters usually vote as a bloc to try to defeat candidates preferred by minority voters, and whether, based on the totality of all circumstances, the state’s conduct decreases the ability of minorities to elect candidates of their choice. Branch claimed that Gingles concerned “vote dilution” as a result of discriminatory redistricting, and that others had also questioned whether it should apply to a case concerning “vote denial” like this one. Judge Martin pointed out, however, that other courts, including the Eleventh Circuit, have “repeatedly recognized” that Gingles properly applies “to a vote denial claim” like in the voter ID case. By rejecting what another court called the “near consensus” among appellate courts on this issue, the panel and the full circuit majority in this case threaten to weaken the force of Section 2 in the Eleventh Circuit and elsewhere.

Finally, Judge Martin further explained, in accord with the panel dissent, how Branch’s opinion improperly approved the lower court decision to resolve for itself disputed factual issues, such as the significance of the disparate impact of the voter ID law on minorities and the presence of discriminatory intent when the law was enacted. Branch effectively made this error again in her opinion concurring in the denial of reconsideration of the case, repeating the panel’s claim that as a matter of fact, there is “only a 1% difference between the ID possession rates of white and minority Alabama voters.” As Judge Martin pointed out, however, the challengers to the Alabama law “offered evidence to dispute” these “judge-found facts,” including evidence that the law “affects more than 118,000 voters” and that there are “statistically significant racial  disparities in photo ID possession” in Alabama. It was clearly “not permissible” for the lower court judge and the panel to have resolved such disputed factual issues at the summary judgment phase, Martin wrote, rather than ruling that they “should have been resolved at trial.”

As Judge Martin pointed out in her conclusion, citing previous precedent, voting is “the beating heart of democracy” and is “preservative of all rights.” But the votes by Branch and other Trump judges to deny rehearing of the Alabama voter ID case multiplies the harm done by Branch in her panel ruling, extending its damaging effects to other possible cases involving voting discrimination, at least in the Eleventh Circuit. Judge Martin herself is retiring this September. It is crucial to our fight for our courts that President Biden nominate and the Senate promptly confirm someone to fill this vacancy who appreciates the importance of voting rights as well as statutes and constitutional provisions which, when properly interpreted, will protect those rights. In fact, Senator Charles Schumer has recently recommended two voting rights lawyers to be nominated for federal court vacancies in New York, noting that “their perspectives will be invaluable in ensuring the federal judiciary fulfills its obligation to ensure equal justice for all.”