Assembled here are case studies on emergency election litigation in federal courts. Because of the time constraints in emergency cases, the case records are often not easily available from other sources. These 385 case studies were prepared by Robert Timothy Reagan, Margaret S. Williams, Marie Leary, Catherine R. Borden, Jessica L. Snowden, Patricia D. Breen, and Jason A. Cantone. We are grateful to Christopher Krewson, Matt Sarago, Geoffrey Erwin, Yvonne Washington, George Cort, Vashty Gobinpersad, Donna Pitts-Taylor, and Tyeika Crawford for their contributions to this project. We are especially grateful to the more than 100 judges who contributed their experiences and wisdom to this project in telephone interviews. These 385 case studies cover 509 emergency cases filed in federal district courts and an additional 104 related federal cases; they result from an examination of 2,928 election cases filed since the beginning of 2000.
Interactive Map of cases.
October 5, 2012, presentation of this site’s resources and a presentation by election law scholar Professor Richard Hasen (University of California at Irvine): Emergency Election Litigation Issues (audio recording).
Note 1: In September 2014, statutory provisions concerning voting and elections were moved to a new title 52 of the U.S. Code.
Note 2: Some of these cases involve section 5 of the Voting Rights Act, which requires some jurisdictions to receive preclearance from the Justice Department or the District Court for the District of the District of Columbia for changes to voting procedures. (These cases are marked with the topic “section 5 preclearance.”) On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the Court did hold unconstitutional the section 4 criteria for which jurisdictions require section 5 preclearance. Shelby County v. Holder, 570 U.S. 529 (2013) (slip opinion). Specific jurisdictions for which discrimination has been proved may be subject to section 5 preclearance pursuant to section 3. SeePatino v. City of Pasadena, 230 F. Supp. 3d 667, 730–31 (S.D. Tex.), stay denied, 677 F. App’x 950 (5th Cir. 2017), and appeal dismissed as settled, Order, No. 17-20030 (5th Cir. Oct. 18, 2017).
States Cannot Require Voter Registration More Than Thirty Days Before a Federal Runoff Election
Georgia State Conference of the NAACP v. Georgia (Timothy C. Batten, Sr., N.D. Ga. 1:17-cv-1397)
Granting a preliminary injunction, a federal district judge found that a state statute requiring voter registration five Mondays in advance of an election to be eligible to vote in a later runoff election was inconsistent with the National Voter Registration Act’s requirement that voter registrations for federal elections be accepted until no more than 30 days before an election.
Topics: Registration procedures; National Voter Registration Act; recusal.
A County’s Improper Refusal to Accept Online Voter Registrations from the State’s Website
Mullins v. Cole (Robert C. Chambers, S.D. W. Va. 3:16-cv-9918)
A district judge determined that a county clerk’s refusal to accept online voter registrations from the state’s website violated equal protection. The judge issued a preliminary injunction five days after the complaint was filed.
Topics: Registration procedures; equal protection; class action; student registration; attorney fees.
When the Voter Registration Deadline Falls on a Holiday
Arizona Democratic Party v. Reagan (Steven P. Logan, D. Ariz. 2:16-cv-3618)
The state’s voter registration deadline fell on a holiday, and a political party sued the state’s secretary of state in federal court to have the deadline extended by one day, but the party did not sue until more than a week after the deadline passed. The district judge determined that the secretary’s not giving voters an extra day to register violated state law and the National Voter Registration Act, but the judge determined that the party filed the case too late to merit injunctive relief.
Topics: Registration procedures; laches; National Voter Registration Act.
Extending Voter Registration Because of a Website Crash
New Virginia Majority Education Fund v. Virginia Department of Elections (Claude M. Hilton, E.D. Va. 1:16-cv-1319)
On the last day of voter registration, the state’s online registration website crashed, and state officials had no authority to extend the registration deadline as a remedy. Two organizations and two prospective voters filed a federal complaint, and the district judge granted a brief extension to voter registration, to which state officials agreed.
Topics: Registration procedures; voting technology.
Extending Voter Registration Deadlines Because of a Hurricane
Florida Democratic Party v. Scott (4:16-cv-626) and League of Women Voters of Florida v. Scott (4:16-cv-633) (Mark E. Walker, N.D. Fla.) and Georgia Coalition for the Peoples’ Agenda, Inc. v. Deal (4:16-cv-269) and Bethea v. Deal (2:16-cv-140) (William T. Moore, Jr., S.D. Ga.)
District judges in Florida and Georgia extended voter registration by one week in advance of the 2016 general election because of evacuations and government office closings resulting from Hurricane Matthew. In Florida, the judge extended the deadline statewide; in Georgia, the judge extended the deadline only for one county, because only offices in that county did not open again after the hurricane until after the original deadline.
Topics: Registration procedures; intervention; case assignment; recusal.
Improperly Requiring Dormitory Names on Students’ Voter Registration Forms
Pitcher v. Dutchess County Board of Elections (Kenneth M. Karas, S.D.N.Y. 7:12-cv-8017)
A federal complaint challenged the rejection of students’ voter registration applications for failure to list dormitory names or room numbers despite the inclusion of valid street and mailing addresses. On the day before the election, the district judge ordered acceptance of registration applications for the student plaintiffs and others similarly situated. Several months later, the suit was closed by consent decree and a stipulated award of attorney fees.
Topics: Student registration; registration procedures; class action; attorney fees.
Superseded Registration Form
Brown v. Rokita (Richard L. Young, S.D. Ind. 1:08-cv-1484)
On the day before the 2008 general election, a voter filed a class action challenging the nullification of her voter registration because she had not used the latest version of the voter registration form. At a temporary restraining order hearing that day, the parties announced an agreement that would permit voters who submitted old registration forms to cast provisional ballots that would be counted if the registration applications included all necessary information.
Topics: Registration procedures; provisional ballots.
Segregating Ballots Because of Questionable Registrations
Atsaves v. Helander (Virginia M. Kendall, N.D. Ill. 1:08-cv-6199)
A voter registration team removed an action from state court seeking to segregate votes by voters registered by the team for investigation of improper registration. The district judge determined that the case did not present a federal question because the Help America Vote Act did not afford private rights of action, and relief from section 1983 requires willful and wanton conduct, which the plaintiffs had not alleged.
Topics: Help America Vote Act (HAVA); 42 U.S.C. § 1983; intervention; removal; matters for state courts.
Suit Arising Under State Implementation of the Help America Vote Act Remanded to State Court
Ohio ex rel. Mahal v. Brunner (George C. Smith, S.D. Ohio 2:08-cv-983)
A state’s secretary of state removed a mandamus action filed with the state’s supreme court concerning the state’s compliance with the Help America Vote Act (HAVA). The district court immediately remanded the case, because the mandamus action sought enforcement of the state’s HAVA implementing legislation, which meant that the case arose under state law.
Topics: Matters for state courts; removal; Help America Vote Act (HAVA).
Regulation of Third-Party Voter Registrations
League of Women Voters of Florida v. Browning (Cecilia M. Altonaga, S.D. Fla. 1:08-cv-21243)
On April 28, 2008, the League of Women Voters filed a federal action in the Southern District of Florida challenging Florida’s regulation of voter registration as so burdensome as to cause the League to suspend its voter registration efforts. On the following day, the district judge held a hearing, ordered the parties to submit a proposed consent order on the next day, and set a preliminary injunction hearing for June 19. On August 6, the court denied the League a preliminary injunction. Similar cases were filed in 2006 in the Southern District and in 2011 in the Northern District.
Topics: Registration procedures; case assignment.
Preclearance of Landowner Voter Registration Requirements
Shields v. Engelman Irrigation District (Ricardo H. Hinojosa, S.D. Tex. 7:08-cv-116)
In response to an April 3, 2008, federal complaint, a district judge and then a three-judge court enjoined new voter registration requirements for a May 10 election by landowners to an irrigation district board of directors for lack of preclearance pursuant to section 5 of the Voting Rights Act.
Topics: Registration procedures; section 5 preclearance; three-judge court; voter identification; matters for state courts; intervention; pro se party.
Wrongfully Requiring Photo Identification for Voter Registration
Pakosz v. Orr (John W. Darrah, N.D. Ill. 1:06-cv-5992)
On the Thursday before the 2006 general election, a pro se plaintiff filed a federal complaint alleging that he was wrongfully prevented from registering to vote. The complaint was docketed on Monday, and the federal judge issued a temporary restraining order that day requiring the defendants to issue the plaintiff a voter registration card. Defendants had wrongfully required the plaintiff to present photo identification, which was not required by the voter registration statute.
Topics: Voter identification; registration procedures; pro se party.
Overly Burdensome Voter Registration Rules
Project Vote v. Blackwell (Kathleen M. O’Malley, N.D. Ohio 1:06-cv-1628)
In July 2006, public interest organizations challenged new voter registration laws as overly burdensome, and the court enjoined the new laws. The court awarded the plaintiffs $321,485.28 in attorney fees and costs.
Topics: Registration procedures; attorney fees.
Enhanced Requirements for Registering and Voting in Arizona
González v. Arizona (2:06-cv-1268), Inter Tribal Council of Arizona v. Brewer (3:06-cv-1362), and Navajo Nation v. Brewer (3:06-cv-1575) (Roslyn O. Silver, D. Ariz.)
Four months before Arizona’s 2006 primary election, a federal complaint challenged proposition 200, a 2004 initiative that enhanced requirements for proof of citizenship for voter registration and proof of identity and residence for voting. The district court acted quickly on the plaintiffs’ motions for a temporary restraining order but denied injunctive relief. In 2012, the court of appeals determined en banc that the proof of citizenship procedure for registration is superseded by the National Voter Registration Act but the identification requirement for voting is not. The Supreme Court agreed that the required federal registration form did not permit additional evidence of citizenship.
Topics: Citizenship; voter identification; registration procedures; National Voter Registration Act; interlocutory appeal; recusal; section 5 preclearance; primary election.
Computerized Voter Registration List
United States v. Alabama (W. Keith Watkins, M.D. Ala. 2:06-cv-392)
The Attorney General sued to enforce Alabama’s compliance with the Help America Vote Act’s requirements for voter registration databases. The judge appointed the governor as a special master to order compliance.
Topics: Help America Vote Act (HAVA); special master.
Strict Voter Registration Rules
Citizens Alliance for Secure Elections v. Vu (Paul R. Matia, N.D. Ohio 1:04-cv-2147)
In a challenge to a county’s voter registration procedures, claiming that they were so strict as to disenfranchise voters, the court determined, on the case’s third day, that provisional ballot procedures were sufficient to protect voters from disenfranchisement.
Topics: Registration procedures; provisional ballots.
Identification Numbers and Voter Registration
Lucas County Democratic Party v. Blackwell (James G. Carr, N.D. Ohio 3:04-cv-7646)
Eighteen days before a general election, a suit alleged that a directive by Ohio’s secretary of state not to process voter registration forms that left blank the box for a driver’s license or Social Security number violated the Help America Vote Act and the National Voter Registration Act. The court denied immediate relief, because there was not enough time to develop an evidentiary record.
Topics: Registration procedures; Help America Vote Act (HAVA); National Voter Registration Act; laches.
Correcting Imperfect Voter Registrations
Diaz v. Hood (James Lawrence King, S.D. Fla. 1:04-cv-22572)
Eight days after voter registration closed for the 2004 general election, three would-be voters and four unions filed a federal complaint alleging that five counties were improperly failing to process and approve voter registrations. At the end of the week, the district court heard a motion to expedite the case; at the end of the following week, the court heard a motion for a preliminary injunction. Four days later, the court dismissed the case for lack of standing, because the plaintiffs either cured or refused to cure their registration defects. In 2005, the court of appeals reversed the dismissal. The district court ruled against the plaintiffs again in 2006, but without prejudice. After a five-day bench trial on a third amended complaint, the court again ruled against the plaintiffs, finding the firm deadline for voter registration to be constitutionally reasonable.
Topics: Registration procedures; National Voter Registration Act; intervention; recusal.
A Party’s Standing to Challenge Voter Registration Procedures
Florida Democratic Party v. Hood (Stephan P. Mickle, N.D. Fla. 4:04-cv-405)
A political party filed a federal complaint challenging election officials’ not processing voter registration applications on which applicants did not check a box stating that they were U.S. citizens even if they signed a statement that they were citizens. The district judge ordered a prompt response and then dismissed the case for lack of standing, because the party had not alleged actual denial of registration for one of its members.
Topics: Citizenship; registration procedures; National Voter Registration Act.
Denial of Voter Registration Efforts
Goodwin v. Meyer (William F. Downes, D. Wyo. 1:04-cv-256)
A federal complaint challenged state proscriptions on voter registration drives. The district judge determined that the plaintiffs had failed to show irreparable injury because voter registration forms were available on the Internet.
Topic: Registration procedures.
The Right of Felons to Register to Vote After Release
CURE-Ohio v. Blackwell (Sandra S. Beckwith, S.D. Ohio 1:04-cv-543) and Racial Fairness Project v. Summit County Board of Elections (John R. Adams, N.D. Ohio 5:04-cv-1948)
A federal complaint against the state’s secretary of state and 21 county boards of elections challenged false representations by election officials that persons convicted of felonies cannot be registered to vote even if they are on parole or have been released from confinement. Following an agreement to provide former prisoners with notices of the right to re-register to vote, the action was dismissed voluntarily. A subsequent action in the state’s other district challenged another county’s election officials’ not including in notices of registration cancellations to felons notices that felons can re-register following confinement. The district judge in the second case held that notices of registration cancellations were not required, but if they are provided they must not be misleading, which they would be if they failed to provide notice of the right to re-register following confinement.
Topics: Registration procedures; prisoner voters; class action; case assignment.
Bundling Voter Registrations
Nu Mu Lambda Chapter v. Cox (William C. O’Kelley, 1:04-cv-1780) and ACORN v. Cox (Jack T. Camp, 1:06-cv-1891) (N.D. Ga.)
A 2004 complaint alleged that Georgia improperly required newly registered voters to submit their voter registration forms directly to the government rather than to coordinators of voter registration efforts. Thirteen days after the complaint was filed, the court granted the plaintiffs injunctive relief. The court of appeals affirmed in 2005. In 2006, a similar complaint alleged that Georgia was not complying with the earlier precedent. Again, the court granted the plaintiffs preliminary injunctive relief. Two years later, the court vacated the preliminary injunction because the parties had not moved the case forward.
Topics: Registration procedures; National Voter Registration Act; enforcing orders; interlocutory appeal.
Voter Registration for College Students
Saunders v. Andrews (4:04-cv-20) and Lowe v. Davis (4:04-cv-21) (Raymond A. Jackson, E.D. Va.)
A college student wishing to run for city council filed a federal complaint challenging the denial of his voter registration. On the following day, three other students filed a similar complaint. The federal judge ruled against the students, but a state judge granted one of the students relief. By the time of the general election, two of the students could register because they obtained driver’s licenses at their local address.
Topic: Student registration.
Blaming Candidacy Withdrawal on a Voter Registration Challenge
Moseley v. Price (T.S. Ellis III, E.D. Va. 1:03-cv-1320)
A pro se federal complaint alleged that voting rights violations forced the plaintiff to withdraw from a race that he alleged he was certain to win. According to the complaint, because he registered to vote while he was in the process of moving into a Loudoun County residence, his registration card was returned; a radio journalist made an issue of it, the county’s circuit court appointed a special prosecutor, and the state police investigated the matter. The judge dismissed the federal voting rights claims as without merit and dismissed state law claims without prejudice.
Topics: Registration procedures; pro se party; matters for state courts.
Challenge to Voter Registration Form Stating That Party Affiliation Is Required for Primary Voting
Fitzgerald v. Berman (Norman A. Mordue, N.D.N.Y. 1:02-cv-926)
As voters supporting open primary elections began a voter registration drive as part of their effort to create a new Non-Affiliated Voters Party, they filed a federal complaint challenging voter registration form language stating that only registered members of political parties could vote in primary elections. The district judge considered but denied immediate relief 15 days later. Two years after that, the district judge dismissed the complaint for lack of standing because all established parties wished to retain closed primary elections.
Topics: Primary election; registration procedures; pro se party.
Voter Registration for Disabled Students
National Coalition for Students with Disabilities Education and Legal Defense Fund v. Bush (Robert L. Hinkle, N.D. Fla. 4:00-cv-442)
A federal complaint alleged that Florida failed to provide voter registration services to disabled students, as required by the National Voter Registration Act, for the 2000 general election. The district judge concluded that “the time to seek any [registration] redress affecting the 2000 election was prior to that election.” Respecting long-term relief, the case settled in May 2001. The judge later learned that a named plaintiff was also a named plaintiff in a similar action in another state; he awarded the plaintiffs zero attorney fees.
Topics: National Voter Registration Act; registration procedures; laches; attorney fees.
Requiring Social Security Numbers for Voter Registration
Schwier v. Cox (Julie E. Carnes, N.D. Ga. 1:00-cv-2820)
On October 26, 2000, two voters filed a federal complaint challenging a requirement that they provide Social Security numbers as part of their voter registrations. On Friday, November 3, the district judge ruled that to vote the plaintiffs could file their Social Security numbers with election officials and with the court under seal; depending on the resolution of the case, the numbers would either be unsealed or destroyed. In 2002, the district judge ruled that an uncodified provision of the Privacy Act did not provide the plaintiffs with rights of action, but the court of appeals determined in 2003 that the uncodified provision was nevertheless applicable law that did afford private rights of action.
Topics: Registration procedures; voter identification; 42 U.S.C. § 1983; attorney fees.
Changing Party Affiliation for a Primary Election
Van Wie v. Pataki (David N. Hurd, 1:00-cv-322), Van Allen v. Cuomo (Gary L. Sharpe, 1:07-cv-722), and Van Allen v. Walsh (Lawrence E. Kahn, 1:08-cv-876) (N.D.N.Y.)
Two weeks before a presidential primary election, two voters filed a federal complaint challenging a law that allowed new voter registrants to enroll in a political party up to 25 days before a primary but did not allow a change in party enrollment for already registered voters to go into effect until after the next general election. One week later, after oral argument, the district judge dismissed the complaint, finding compelling the incentive to register new voters. Actions initiated in 2007 and 2008 were similarly unsuccessful.
Topics: Registration procedures; primary election; intervention; pro se party.
Voter Registration Purges in North Carolina
North Carolina State Conference of the NAACP v. North Carolina State Board of Elections (Loretta C. Biggs, M.D.N.C. 1:16-cv-1274)
Eight days before a presidential election, a federal complaint challenged widespread cancelation of voter registrations based on single instances of undeliverable mail. Finding that the National Voter Registration Act proscribed systematic voter registration cancelations less than 90 days before a federal election and proscribed cancelations based on evidence of residence changes before two federal elections had occurred, a district judge enjoined the voter registration cancelation program at issue in an opinion issued four days before the election.
Topics: Registration challenges; National Voter Registration Act.
Restoration of the Elective Franchise for a Voter Whose Sentencing Is Stayed
Hunter v. Hamilton County Board of Elections (1:16-cv-962) and Hunter v. Hamilton County Board of Elections (1:16-cv-996) (Michael R. Barrett, S.D. Ohio)
A plaintiff convicted in state court of a felony filed a federal complaint on September 27, 2016, seeking an order requiring the county board of elections to accept her voter registration because her sentence had been stayed by the district court in a habeas corpus action, so she was not incarcerated. A district judge granted the plaintiff relief on October 6. A second federal complaint filed pro se on October 11 seeking the plaintiff’s certification as a candidate for juvenile court was not successful, because the plaintiff had been disbarred as a result of her conviction.
Topics: Registration challenges; getting on the ballot; case assignment; pro se party; attorney fees.
Unsuccessful Effort to Open a Primary Election Because of Allegedly Purged Party Registrations
Campanello v. New York State Board of Elections (Joanna Seybert and Sandra J. Feuerstein, E.D.N.Y. 2:16-cv-1892)
Filed on the day before a presidential primary election, a federal complaint sought to open the parties’ primary elections to voters of all parties as a remedy for allegedly improper purging of party registrations. The district judge on miscellaneous duty denied immediate relief. Following their filing of an amended complaint after the election, the plaintiffs declined to respond to a motion to dismiss the case, and so the assigned judge dismissed the case.
Topics: Registration procedures; matters for state courts; primary election; National Voter Registration Act; case assignment; class action; ballot segregation; provisional ballots.
Purging Voter Registrations Because of Registration in Other States
Democratic Party of Virginia v. Virginia State Board of Elections (Claude M. Hilton, E.D. Va. 1:13-cv-1218)
A federal complaint challenged the purging of voter registrations for persons that appeared to have registered in other states since the last time they voted in Virginia, alleging an excess of errors. The district judge denied the plaintiffs relief, finding several mechanisms in place to correct errors.
Topic: Registration challenges.
Cancellation of Voter Registrations for Not Voting in the Last Election
Colón Marrero v. Conty Pérez (Carmen Consuelo Cerezo, D.P.R. 3:12-cv-1749)
Five days before a September 17, 2012, voter registration deadline in Puerto Rico, a voter filed a federal complaint challenging the cancellation of her registration because she had not voted in the 2008 general election. The district judge denied the voter immediate relief because (1) the National Voter Registration Act does not apply to Puerto Rico as it does to the states, (2) the Help America Vote Act does not afford a private right of action, and (3) the plaintiff had not justified her bringing the case so late. The court of appeals, on the other hand, found probable success on the merits and remanded the case for an evidentiary hearing. On October 18, the court of appeals determined that relief for the plaintiff had become infeasible. In November, the court of appeals vacated an order issued in the plaintiff’s favor by the district court judge under the All Writs Act. After further litigation, the court issued a declaratory judgment in favor of the plaintiffs, which was affirmed on appeal. The courts ruled that canceling a federal voter registration after missing only one general election violates HAVA. In 2017, the court awarded the plaintiffs $135,931 in attorney fees.
Topics: Registration challenges; National Voter Registration Act; Help America Vote Act (HAVA); laches; enforcing orders; attorney fees.
Purging Noncitizen Voter Registrations
United States v. Florida (Robert L. Hinkle, N.D. Fla. 4:12-cv-285)
The U.S. Court of Appeals for the Eleventh Circuit determined that a systematic purge of noncitizens’ voter registrations violates the National Voter Registration Act. During the 2012 election cycle, the Justice Department brought a federal action against Florida in the Northern District of Florida claiming that Florida was violating the Act. Fifteen days later, the district court ruled against preliminary injunctive relief, because Florida had ceased the purge that prompted the suit. In addition, the district judge ruled that the 90-day proscription against systematic purges did not apply to noncitizens. In another case, a judge in the Southern District came to the same conclusion. Florida resumed its purge upon access to more reliable citizenship data from the Department of Homeland Security. In 2014, the court of appeals held a systematic purge even of noncitizens illegal shortly before an election, when there is little time to correct errors.
Topics: Citizenship; registration challenges; National Voter Registration Act; intervention; recusal; case assignment.
Threats to Cancel Voter Registrations
Chatman v. Delaney (Clifford J. Proud, S.D. Ill. 3:09-cv-259)
Voters filed a federal complaint because of notices they received that their voter registrations might be canceled before an April 7, 2009, election and absentee ballots they might have cast might not be counted. The county had identified the voters’ village as one with a high rate of voter fraud, so it sent registration challenge letters to 558 of its residents. The parties consented to a decision by a magistrate judge who was available and local; the assigned district judge was 110 miles away. The case was resolved by a consent order issued after a conference with the judge.
Topics: Registration challenges; case assignment.
Voter Registrations for Juvenile Offenders
Hamilton v. Ashland County Board of Education (Donald C. Nugent, N.D. Ohio 1:08-cv-2546)
Adult inmates of a juvenile correctional facility sued to enjoin cancelation of their voter registrations for not being permanent residents. The district court denied the plaintiffs relief. The court of appeals vacated the portion of the district court decision pertaining to state law as a matter for state courts to decide.
Topics: Prisoner voters; registration challenges; matters for state courts.
Voter Registration Purges in Colorado
Common Cause of Colorado v. Coffman (John L. Kane, D. Colo. 1:08-cv-2321)
A federal complaint alleged that Colorado was engaging in improper systematic purging of voter registration rolls within 90 days of a general election in violation of the National Voter Registration Act. Among the issues in the case was Colorado’s practice of canceling new registrations if registration notices came back undeliverable within 20 days of their being mailed. After an evidentiary hearing, the parties stipulated to a temporary restraining order. The state’s secretary of state adopted an aggressive interpretation of his attorney’s stipulation, but the district judge further restrained the secretary’s actions. The litigation proceeded at a normal pace after the election, and the district judge eventually ruled that Colorado’s 20-day rule did not violate the National Voter Registration Act because voters affected by it could cast provisional ballots.
Topics: Registration challenges; registration procedures; National Voter Registration Act; enforcing orders; case assignment.
Morales v. Handel (Jack T. Camp, N.D. Ga. 1:08-cv-3172)
A naturalized citizen sued Georgia for its efforts to purge noncitizens from voter registration rolls. A three-judge court determined that section 5 preclearance was required for the efforts and granted interim relief. Georgia eventually was able to establish procedures that earned preclearance.
Topics: Citizenship; registration challenges; Help America Vote Act (HAVA); section 5 preclearance; three-judge court.
Partisan Canceling of Voter Registrations
Montana Democratic Party v. Eaton (Donald W. Molloy, D. Mont. 9:08-cv-141)
One political party filed an action against the other political party for launching an effort to nullify several thousand voter registrations based on postal changes of address. Because the state did not fully effectuate the plan, in part because of the filing of the case, the court did not need to grant the plaintiffs relief.
Topics: Registration challenges; National Voter Registration Act.
Improperly Canceling Voter Registrations for Changes of Address
United States Student Ass’n Foundation v. Land (Stephen J. Murphy III, E.D. Mich. 2:08-cv-14019)
Three organizations filed a federal complaint charging the state with improperly canceling voter registrations based on insufficient indications of residence changes. The district judge determined that the state’s practice of rejecting voter registrations if registration identification cards came back from the post office as undeliverable failed to follow the notice and waiting period requirements of the National Voter Registration Act. The state’s practice of canceling registrations upon learning that the voter became registered to drive in another state also relied on flawed logic and violated the act. The case was finally resolved by settlement with a payment of $150,000 in attorney fees and costs to the plaintiffs.
Topics: Registration challenges; National Voter Registration Act; attorney fees; intervention.
Using Foreclosure Notices to Challenge Voters
Maletski v. Macomb County Republican Party (David M. Lawson, E.D. Mich. 2:08-cv-13982)
Based on a news website’s report that one party was planning to use foreclosure notices to challenge voter registrations during the 2008 general election, the other party filed a federal complaint to enjoin the plan. In preparation for a hearing, the parties learned that the news report was not accurate, so the parties stipulated to a dismissal on the day of the hearing.
Topic: Registration challenges.
Hurricane Displacement and Voter Registration
Segue v. Louisiana (Kurt D. Engelhardt, E.D. La. 2:07-cv-5221)
The complaint challenged Louisiana’s notification procedures for challenges to voter registrations based on evidence that the voters had registered elsewhere. The district judge determined that preclearance was not necessary because Louisiana was giving more notice than it was precleared to, and empaneling a three-judge court was not necessary.
Topics: Registration challenges; section 5 preclearance; three-judge court.
A List of Inactive Voters in Lawrence, Massachusetts
¿OÍSTE? v. City of Lawrence (Nathaniel M. Gorton, D. Mass. 1:05-cv-12218)
On the Friday before a local election, two voters and a political organization filed a federal complaint seeking relief from a recent notification to a large number of potential voters that they had been placed on an inactive list. On Monday afternoon, the judge recessed proceedings for 23 minutes for the parties to agree on a statement to voters in both English and Spanish to be broadcast and printed in the media. Several months later, after three filings stating that the parties were working to resolve matters without litigation, the judge dismissed the case without prejudice.
Topics: Registration procedures; case assignment.
Widespread Voter Registration Challenges
Miller v. Blackwell (Susan J. Dlott, S.D. Ohio 1:04-cv-735)
One week before the 2004 general election, the Democratic Party filed a federal complaint challenging widespread voter registration challenges—approximately 22,000—by the Republican Party based on returned mail. The court enjoined administrative hearings on the challenges through the election. After the election, the plaintiffs dropped the case.
Topics: Registration challenges; intervention; class action; enforcing orders.
The Right to Vote While Under Guardianship
Prye v. Blunt (Ortrie D. Smith, W.D. Mo. 2:04-cv-4248)
A prospective voter filed a federal complaint one month before a general election challenging a state’s disqualification of voters under guardianship. The district judge denied the plaintiff immediate relief because of state court opportunities to reserve voting rights in limited guardianship. For similar reasons, the judge granted defendants summary judgment against a substituted plaintiff who was erroneously denied the vote because of a misunderstanding about the plaintiff’s reserved voting rights. The court of appeals affirmed the summary judgment because the substituted plaintiff had already received a remedy and an advocacy organization co-plaintiff did not have standing to represent the interests of mere constituents.
Topics: Registration challenges; matters for state courts.
Injunction Against Purging of Minor Party Registrations for Party’s Failure to Qualify as an Established Party
Green Party of New York State v. New York State Board of Elections (John Gleeson, E.D.N.Y. 1:02-cv-6465)
Three days before the certification of a gubernatorial election would result in a minor party’s demotion from status as an established party because its candidate received an insufficient number of votes for governor, the party filed a federal complaint challenging the stripping of registered party membership for all of its registered members. The district judge issued a temporary restraining order in the party’s favor. Later, the court of appeals affirmed a preliminary injunction in the party’s favor.
Topics: Registration procedures; interlocutory appeal; intervention; getting on the ballot; attorney fees; pro se party.
Nullifying University Students’ Voter Registrations
Copeland v. Priest (George Howard, Jr., E.D. Ark. 4:02-cv-675)
An October 25, 2002, federal complaint sought the restoration of voter registrations for students and other persons living in university housing. The first judge assigned recused himself because he was out of town, and the second judge recused himself because one plaintiff’s father was the governor, whose opponent the judge’s wife supported. A third judge granted the plaintiffs relief, finding that the state judge’s order nullifying registrations improperly created “an irrebuttable presumption that would-be voters who live at a university address and are not members of the staff at a university are not residents.” The court awarded the plaintiffs $28,221.92 in attorney fees and costs.
Topics: Student registration; registration challenges; intervention; matters for state courts; case assignment; attorney fees.
Spouses Registered in Different Precincts
Bell v. Marinko (James G. Carr, N.D. Ohio 3:02-cv-7204)
With a primary election 18 days away, a voter filed a federal complaint seeking injunctive relief against the county’s hearing a challenge to his voter registration on residency grounds. The district court determined that challenge procedures did not violate the National Voter Registration Act, but there was a probable equal protection violation by a statutory provision raising a question of residence for spouses not separated and not registered in the same precinct. The court temporarily enjoined application of that statutory provision. After the election, the court heard summary judgment motions on an amended complaint adding plaintiffs whose residency challenges were successful; the original plaintiff prevailed in his challenge. The district court dismissed the action, and the court of appeals affirmed.
Topics: Registration challenges; equal protection; National Voter Registration Act; primary election.
Denial of the Right to Vote Because of Eviction
Dowd v. Town of Dedham (Joseph L. Tauro and Marianne B. Bowler, D. Mass. 1:01-cv-10944)
A frequent pro se plaintiff filed a federal complaint four days before a municipal election. The plaintiff challenged denial of his right to vote arising from his eviction from a residence in the town. The judge granted the plaintiff in forma pauperis status and ordered him to show cause why the complaint should not be dismissed for lack of merit. The court of appeals affirmed dismissal of the action.
Topics: Pro se party; registration challenges.
Voter Registrations Voided Because a Deputy Registrar Was Dismissed
Johnson v. Helander (Charles R. Norgle, Sr., N.D. Ill. 1:00-cv-6926)
A high-school student filed a federal complaint to validate high-school voter registrations that had been voided because of sloppy work by a deputy registrar. The district judge denied class certification, and he denied immediate injunctive relief. The county attorney presented evidence that the plaintiff had received notice of his voided registration in time to cure it.
Topics: Registration procedures; student registration; class action.
Voting and Mental Illness
Doe v. Attorney General (George Z. Singal, D. Me. 1:00-cv-206)
One month before the 2000 general election, three women under psychiatric guardianships filed a federal complaint challenging Maine’s exclusion of persons under such guardianships from the right to vote. Approximately three weeks later, the court denied injunctive relief. On a more complete record the following year, the court invalidated the franchise exclusion.
Topic: Equal protection.
Challenge to Voter Registrations in an RV Park
Curtis v. Smith (Howell Cobb, E.D. Tex. 9:00-cv-241)
The plaintiffs in this federal action sued to enjoin challenges to 9,000 voter registrations in an RV park that could hold only a fraction of the voters at any one time. The plaintiffs alleged that procedures on the en masse challenge had not been precleared pursuant to section 5 of the Voting Rights Act, and a three-judge court ultimately agreed.
Topics: Section 5 preclearance; three-judge court; registration challenges; matters for state courts; intervention.
Injunction Against a State Law Singling Out One Municipality for a Change in Local Control
City of Greensboro v. Guilford County Board of Elections (Catherine C. Eagles, M.D.N.C. 1:15-cv-559)
On July 2, 2015, a state legislature restructured a city council from five members representing districts and three members elected at large to eight members representing districts, and the legislature removed control over the structure of city government from this city alone. On July 13, two weeks before the beginning of a candidate filing period, a federal complaint challenged the act, and the district judge determined that the act probably violated equal protection by treating the city differently from all other cities in the state, so the election proceeded according to the original council structure. Following a bench trial in 2017, the judge additionally determined that the new district lines unconstitutionally favored one political party. Because no party defended the constitutionality of the legislation, the judge declined the plaintiffs an award of attorney fees.
Topics: Equal protection; intervention; malapportionment; attorney fees.
Voting Rights Challenge to a School District Consolidation
North Forest Independent School District v. Texas Educational Agency (David Hittner, S.D. Tex. 4:13-cv-1786)
School district trustees filed a federal voting rights challenge to consolidation of the school district with a neighboring school district. On the day after the case was heard, the challenge pursuant to section 5 of the Voting Rights Act became moot because of the Supreme Court’s holding that the criteria for application of section 5 were unconstitutional. The district judge denied immediate relief on the section 2 claim, consolidation proceeded, and the parties stipulated to a nonsuit.
Topics: Section 2 discrimination; section 5 preclearance; laches.
Inadvertent Use of Wrong District Lines in a Primary Election
Harris County Department of Education v. Harris County (Lee H. Rosenthal, S.D. Tex. 4:12-cv-2190)
A county’s department of education filed a federal complaint after a primary election for its board of trustees was held using malapportioned district lines instead of interim lines imposed by a federal judge in another case while preclearance of new lines was pending. The district judge presiding over the new case found no constitutional violation because of a lack of intent, and she found that the equities weighed against the plaintiff because it was unlikely that the districting error had an effect on the election’s ultimate outcome.
Topics: Election errors; enjoining elections; malapportionment; intervention; 42 U.S.C. § 1983; primary election.
Redistricting the Bibb County School District
Miller v. Bibb County School District (Hugh Lawson, M.D. Ga. 5:12-cv-239)
A June 26, 2012, federal complaint alleged malapportionment for a county board of education. The district judge delayed the pending primary election until the day scheduled for a possible primary runoff to give the county enough time to adopt a precleared redistricting plan. By consent order, the judge awarded the plaintiffs attorney fees and costs.
Topics: Malapportionment; enjoining elections; section 5 preclearance; attorney fees.
Preclearance of Court-Ordered Redistricting in Alaska
Samuelsen v. Treadwell (Sharon L. Gleason, D. Alaska 3:12-cv-118)
Six days after the candidate filing deadline for Alaska’s legislature, four voters filed a federal complaint in the District of Alaska claiming that although Alaska’s initial 2011 redistricting had been precleared pursuant to section 5 of the Voting Rights Act, modifications ordered by Alaska’s supreme court in May had not. On the day before a three-judge court was to hear the case, the modifications were precleared.
Topics: Section 5 preclearance; three-judge court; recusal; case assignment; primary election.
Redistricting the Sumter County School Board
Bird v. Sumter County Board of Education (W. Louis Sands, M.D. Ga. 1:12-cv-76)
The district court enjoined July 31, 2012, primary elections for Sumter County, Georgia’s board of education, on a May 22 federal complaint. The relief was sought by both the voter plaintiff and the county defendants because of the state’s failure to seek timely preclearance for new district lines reflecting the 2010 census. The judge permitted an interest group to intervene for the purpose of proposing a new district plan, but the judge decided to draw his own plan with the assistance of the legislature’s reapportionment office.
Topics: Malapportionment; enjoining elections; intervention; section 5 preclearance.
Redistricting Clayton County’s Board of Education
Adamson v. Clayton County Elections and Registration Board (Charles A. Pannell, Jr., N.D. Ga. 1:12-cv-1665)
A May 11, 2012, federal complaint alleged malapportionment for a county board of education’s district lines, because the lines had not been redrawn after the 2010 census. On the day at the beginning of the qualifying period for the primary election, the district judge heard the case and enjoined election procedures until the district lines could be redrawn. With the assistance of the state’s reapportionment office, the judge adopted a new districting map in June. There was no primary election that year; all candidates ran in the general election. The court assessed half of the expert’s fees to each side.
Topics: Malapportionment; enjoining elections; case assignment.
Essex v. Kobach (Kathryn H. Vratil, D. Kan. 5:12-cv-4046)
Kansas was the last state to redraw district lines in light of the 2010 census, and a voter filed a federal action for court-drawn districts on May 3, 2012, a little over one month before candidate filing deadlines. After a day-and-a-half bench trial, a three-judge court issued new district lines for congressional seats, the state legislature, and the state board of education on June 7. The court awarded the plaintiff and some intervenors $379,447.15 in attorney fees and expenses.
Topics: Malapportionment; three-judge court; intervention; attorney fees.
A Transitionally Unrepresented District Because of District Restructuring
NAACP—Greensboro Branch v. Guilford County Board of Elections (William L. Osteen, Jr., M.D.N.C. 1:12-cv-111)
The state’s restructuring of a county board of commissioners would result in a two-year transition period with one district unrepresented and another district with two representatives. The district judge declined to enjoin the beginning of the candidate filing period, but on further hearing provisionally enjoined the election. The court’s ultimate remedy was to swap the election schedule for two districts so that an election would be held for the district that would otherwise be unrepresented instead of another district, an election for which would be held two years later. The state resolved the issue of double representation by appointing one of the duplicate representatives to an at-large seat.
Topics: Equal protection; enjoining elections.
Using an Old Legislative Districting Plan
Smith v. Aichele (2:12-cv-488), Garcia v. 2011 Legislative Reapportionment Commission (2:12-cv-556), and Pileggi v. Aichele (2:12-cv-588) (R. Barclay Surrick, E.D. Pa.)
From January 30 through February 3, 2012, three federal complaints sought to block April 24 primary legislative elections because the district lines were based on the 2000 census. On February 8, the judge denied all requests to delay the primaries. On March 17, 2014, the court of appeals affirmed a judgment against voters because the voters did not reside in districts with legislative seats up for election in 2012.
Topics: Malapportionment; enjoining elections.
Imminent Elections for a Districting Plan Not Yet Precleared
Petteway v. Galveston (Kenneth M. Hoyt, Emilio M. Garza, and Melinda Harmon, S.D. Tex. 3:11-cv-511)
A federal complaint sought to enjoin the use of new county commission district lines until the new lines could be precleared pursuant to section 5 of the Voting Rights Act. The district judge assigned the case issued a temporary restraining order, but the other two judges of a three-judge court empaneled to hear the section 5 claim determined that the injunction was unnecessary while preclearance procedures were pending. Preclearance required adjustments to the new districting plan, and the court ordered adjustments to the election calendar to accommodate the late-drawn district lines. The district judge assigned the case awarded attorney fees and costs to the plaintiffs, but the court of appeals determined that they were not prevailing parties in the litigation because the injunction did not have an impact on the preclearance process.
Topics: Section 5 preclearance; malapportionment; three-judge court; enjoining elections; attorney fees; intervention.
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During the past 40 years, federal courts, particularly the U.S. Supreme Court, have superseded states as the driving force in crafting abortion policy. Indeed, since the high court’s January 1973 decision in Roe v. Wade, which granted women the constitutional right to terminate their pregnancies, state legislatures and governors have encountered a number of limitations in the ways they can regulate abortion.
Prior to Roe, and throughout much of American history, states banned or severely restricted abortion. State abortion laws, many of which were enacted in the 19th and early 20th centuries, often targeted those who performed abortions rather than the pregnant women who sought to have the procedure performed. The aim of many of these laws was to protect pregnant women (and their fetuses) from injury, not to prosecute them.
Despite the near-universal prohibition on abortion in the early 20th century, social forces in the decades that followed – such as the fight for women’s suffrage and later the feminist movement – pushed the country toward greater political and sexual freedom for women. In 1967, Colorado became the first state to greatly broaden the circumstances under which a woman could legally receive an abortion. By 1970, 11 additional states had made similar changes to their abortion laws and four other states – New York, Washington, Hawaii and Alaska – had completely decriminalized abortion during the early stages of pregnancy.
Meanwhile, abortion rights advocates launched a series of court challenges to many older state abortion laws, often arguing that these statutes were overly vague or that they violated the right to privacy or the right to equal protection under the law guaranteed under the U.S. Constitution. State and lower federal courts usually rejected these arguments.
Roe v. Wade
In the early 1970s, the Supreme Court agreed to hear two cases challenging laws that restricted abortion. In Roe v. Wade (1973), the high court considered a challenge to a Texas law outlawing abortion in all cases except those in which the life of the mother was at risk. The second case, Doe v. Bolton (1973), focused on a more lenient Georgia law that allowed a woman to terminate her pregnancy when either her life or her health was in danger. In both cases, lower federal courts had declared the statutes unconstitutional, ruling that denying a woman the right to decide whether to carry a pregnancy to term violated basic privacy and liberty interests contained in the Constitution.
In two separate but related decisions, the Supreme Court affirmed the lower courts’ conclusions and struck down both statutes by a vote of 7-2. In Roe, the more significant of the two decisions, the court concluded that constitutional rights to privacy and liberty protected a woman’s right to terminate her pregnancy. Writing for the majority, Justice Harry Blackmun acknowledged that while “the Constitution does not explicitly mention any right to privacy,” a number of prior decisions had found “a guarantee of certain areas or zones of privacy.” This guarantee of privacy, Blackmun added, is grounded in several amendments within the Bill of Rights and in the 14th Amendment’s guarantee of liberty, which taken together create zones of privacy in areas of society such as marriage, contraception, family relationships and child-rearing.
Justice Blackmun’s argument for the right to privacy in Roe grew out of earlier high court decisions, most notably Griswold v. Connecticut (1965). In Griswold, the court had struck down a Connecticut anti-contraception law on the ground that it intruded on the right to marital privacy. Justice William Douglas, writing for the majority, had asserted that “zones” of personal privacy are fundamental to the concept of liberty under “the protected penumbra of specific guarantees of the Bill of Rights.”
Having concluded in Roe that access to abortion is a “fundamental right,” the court declared that only a “compelling state interest” could justify the enactment of state laws or regulations that limit this right. The court also recognized that the state has an “important and legitimate interest” in protecting the health of the mother and even “the potentiality of human life” inside her. The court then asked: When does the state’s legitimate concern for maternal and fetal protection rise to the level of compelling interest? To answer this question, Blackmun created a three-tiered legal framework, based on the nine-month period of pregnancy, which gave the state greater interest and regulatory latitude in each successive tier.
Drawing Lines: The Three Tiers of Justice Blackmun’s Trimester Framework in Roe
Time Period Covered: First trimester of pregnancy
Legal Standard: State has no real interest in protecting mother’s health
Legal Limits: State can only require basic health safeguards and cannot limit access to abortion
Time Period Covered: End of first trimester to point of fetal viability
Legal Standard: State has interest in protecting mother’s health
Legal limits: State can regulate abortion only to protect health of mother
Time Period Covered: Period after point of fetal viability
Legal Standard: State has interest in protecting “potential life”
Legal Limits: State can restrict or even ban abortion as long as procedure still allowed when mother’s life or health at risk
The first tier in Blackmun’s framework encompassed the first trimester of pregnancy. Given that during these first three months the risks associated with abortion are actually lower than those associated with childbirth, the state has no real interest in limiting the procedure in order to protect a woman’s health, Blackmun argued. During this period, the state can only impose basic health safeguards – such as requiring that the procedure be performed by a qualified health professional – and can in no way limit access to abortion.
The second tier of Blackmun’s framework encompassed the period from the end of the first trimester to the point of fetal viability – the point at which a fetus can survive outside the womb, either through natural or artificial means, which typically takes place between about 24 and 28 weeks into a pregnancy. At this point, Blackmun determined, the state has an interest in protecting maternal health and can regulate abortion only to protect the health of the mother. In other words, regulations have to be directed toward ensuring maternal health and cannot be aimed at protecting a fetus or limiting access to abortion services. Thus, a state law requiring a doctor to describe to a woman seeking an abortion the risks associated with the procedure before receiving her informed consent would be constitutional – as long as the requirement aimed to protect maternal health and was not created to dissuade a woman from terminating her pregnancy.
The third tier of Blackmun’s framework encompassed the period after the point of fetal viability. During this time, Blackmun wrote, the state has an interest in protecting “potential life” and can even proscribe abortion, as long as the procedure is still allowed in cases in which the life or health of the mother is at risk.
In Doe, the same seven-justice majority largely restated and fleshed out its ruling in Roe. Again writing for the majority, Justice Blackmun determined that state regulations that could create procedural obstacles to abortion – such as, in this particular case, the requirement that an abortion be performed in a hospital or be approved by two doctors – violate a woman’s right to terminate her pregnancy.
The Post-Roe Court
Roe proved to be one of the most significant decisions ever handed down by the Supreme Court and is perhaps rivaled in public attention in the 20th century only by the landmark 1954 school desegregation case, Brown v. Board of Education. Unlike Brown, however, Roe has remained controversial in the decades since it was decided.
In the years immediately following Roe, the Supreme Court grappled with a host of issues that arose from the decision. These included questions about laws requiring informed consent, parental consent, spousal consent and waiting periods for women seeking abortions. In these early cases, the high court generally struck down most laws regulating abortion and upheld only a few that, in the court’s view, did not significantly limit a woman’s right to terminate her pregnancy. In these cases, the court also affirmed Roe and its three-tiered framework.
The first small crack in Roe jurisprudence came in 1989 when the high court decided Webster v. Reproductive Health Services. This case concerned a Missouri statute that barred public facilities from being used to conduct abortions and prohibited public health workers from performing abortions unless the life of the mother was at risk. The statute also defined life as beginning at conception and directed physicians to perform fetal viability tests on women who were 20 or more weeks pregnant and seeking abortions.
In a highly fractured 5-4 decision, the court upheld the constitutionality of the statute. Writing for the majority, Chief Justice William Rehnquist stated that the law’s declaration that life begins at conception does not contradict Roe because the declaration is contained in the statute’s preamble and thus should have no real impact on access to abortion. The majority also held that prohibiting the use of government workers or facilities to perform abortions is acceptable because the right to an abortion established in Roe does not include the right to government assistance in obtaining one. The majority also ruled that the requirement of viability testing at 20 weeks is constitutional, although the justices offered different reasons for this ruling.
In one opinion, Chief Justice Rehnquist, joined by Justices Byron White and Anthony Kennedy, argued for dispensing with part of Roe‘s three-tiered system, the second tier of which allows only laws aimed at protecting the mother’s health. According to Rehnquist, the framework had come to resemble “a web of legal rules” rather than “constitutional doctrine.” The three justices also maintained that the state has an interest in protecting potential life before viability, making the 20-week requirement valid even if fetal viability normally occurs after 20 weeks. “We do not see why the state’s interest in protecting potential human life should come into existence only at the point of viability and should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability,” Rehnquist wrote.
In a concurring opinion, Justice Antonin Scalia argued that the majority opinion was “indecisive” and “stingy” and that Roe should be overturned. Justice Sandra Day O’Connor, the fifth and final member of the majority, also concurred in the decision, but for very different reasons. Unlike her colleagues in the majority, O’Connor argued that Roe‘s trimester system, while problematic, should neither be modified nor overturned in this case. She determined rather that the testing requirement passed constitutional muster because it does not impose an “undue burden” on a woman considering an abortion.
In a blistering dissent, Justice Blackmun took Justices Rehnquist, White and Kennedy to task for attempting to overturn Roe by what he claimed were stealth tactics; he described their written opinion as “filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly.”
Timeline courtesy of Stateline.org
The Divided Court in Casey
Although Roe and its three-tiered system survived Webster, Blackmun’s fears were at least partially realized. The Webster decision revealed a new majority on the court with a greater willingness to uphold state restrictions on abortion. And while legal scholars and others were not immediately certain of the ruling’s impact, Webster ultimately set the stage for more significant changes in Roe’s three-tiered framework, changes that would come a mere three years later in the 1992 decision Planned Parenthood of Southeastern Pennsylvania v. Casey.
Casey involved a challenge to a wide-ranging abortion law that included an informed-consent requirement as well as a 24-hour waiting period for women seeking abortions. In addition, the statute required a minor to obtain the consent of at least one parent or guardian, and for a wife to inform her husband of her plans to terminate her pregnancy. In the cases of both the minor and spousal requirements, various waivers were available for extenuating circumstances.
In Casey, the court rendered an even more splintered decision than it had in Webster. The court’s three centrists – Justices Kennedy, O’Connor and David Souter – took the unusual step of issuing a joint opinion authored by all three justices. They were joined by the court’s liberal wing – Justices Blackmun and John Paul Stevens – in affirming Roe‘s core principle: that the state may not prohibit pre-viability abortions. But the three centrists were joined by the court’s more conservative wing – Justices Rehnquist, Scalia, White and Clarence Thomas – in upholding all of the Pennsylvania statute’s requirements, except the provision concerning spousal notification.
In affirming Roe, the high court argued in favor of maintaining the constitutional status quo for reasons that went beyond legal precedent. “The Constitution serves human values,” wrote Justices Kennedy, O’Connor and Souter, “and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed.” In other words, the justices were arguing, Roe has created expectations that should not easily be discarded.
At the same time, the court significantly modified the three-tiered framework that Roe had created. First, under Casey states could now regulate abortion during the entire period before fetal viability, and they could do so for reasons other than to protect the health of the mother. The court also dismantled Roe‘s prohibition on the regulation of abortion during the first trimester (Blackmun’s first tier) and its limitation of regulation between the end of the first trimester and the point of fetal viability (Blackmun’s second tier). The result was that a state’s interest in and regulation of potential life could now arguably extend throughout a woman’s pregnancy.
In addition, the court in Casey also established a less rigorous standard for determining whether state abortion laws are constitutional. In Roe v.Wade, the court had declared access to abortion to be a fundamental right and had determined that states could only regulate abortion (before fetal viability) if there was a “compelling state interest.” Thus, subsequent abortion statutes had been evaluated under the “strict scrutiny” standard, the most rigorous legal standard for determining whether a law passes constitutional muster. As a result, in the years immediately following Roe, many abortion regulations were declared unconstitutional.
But in Casey the court replaced strict scrutiny with a new and less rigorous “undue burden” standard. Under the new standard, regulating abortion before the point of fetal viability would be deemed unconstitutional only if it imposed an undue burden on a woman’s right to terminate her pregnancy.
Casey appeared to accommodate both sides in the abortion debate. By partially dismantling the three-tiered framework and creating the less rigorous undue burden standard for determining the constitutionality of abortion regulations, the high court gave states greater latitude to regulate abortion before the point of fetal viability. Indeed, in Casey the court applied the less rigorous undue burden standard to the Pennsylvania laws and, with the exception of the spousal-consent requirement, found all to be constitutional.
But abortion opponents had viewed Casey as an opportunity to overturn Roe, and many believed the court, bolstered by new Republican-appointed members Clarence Thomas and David Souter, would do so. By ultimately affirming Roe, however, the court solidified the decision’s status as legal precedent, thus affording Roe greater protection from future challenges.
The Partial-Birth Abortion Decisions
In 2000, the Supreme Court accepted Stenberg v. Carhart, a case challenging the constitutionality of a Nebraska law prohibiting partial-birth abortion. The term “partial-birth abortion” refers to a procedure known in the medical community as “dilation and extraction” (D&X), which involves terminating a pregnancy by partially extracting a fetus from a uterus, then collapsing its skull and removing its brain. This procedure is usually performed late in the second trimester, between 20 and 24 weeks into a pregnancy. Violation of the Nebraska law was made a felony, and punishment included possible fines and jail time, as well as the automatic revocation of a convicted doctor’s state license to practice medicine.
In a 5-4 decision, the high court ruled that the Nebraska law violated the Constitution as interpreted in Casey and Roe. Justice Breyer, delivering the majority opinion, stated that the statute lacked the requisite exception “for the preservation of the … health of the mother.” Citing Casey, Breyer determined that the state may promote but not endanger a woman’s health when it regulates the methods of abortion.
In addition, the majority found the wording of the Nebraska ban unclear because it could be interpreted by doctors to include not only the D&X procedure but other abortion methods as well. The majority ruled that this ambiguity imposed an undue burden on a woman’s ability to choose an abortion, as well as on those who perform abortions using methods similar to the partial-birth procedure who might face prosecution.
Even though the decision effectively rendered similar bans in more than 30 states unenforceable, the vote was unexpectedly close for a court in which support for the right to abortion was expected to garner the support of six justices. In a surprising shift, Justice Kennedy dissented, emphasizing what he described as the “consequential moral difference” between the dilation and extraction method and other abortion procedures.
In 2003, Congress passed and President George W. Bush signed the Federal Partial Birth Abortion Ban Act, the first federal law banning the D&X procedure. Abortion rights advocates immediately challenged the law, and lower courts, citing Stenberg, struck it down.
But in 2007, in the case Gonzales v. Carhart, the Supreme Court reversed course and upheld the federal ban by a vote of 5-4, giving abortion opponents a major victory and prompting many states to consider passing tougher restrictions on abortion. The ruling was significant because the high court declared the federal statute to be constitutional even though it does not contain an explicit exception in cases in which a woman’s health is in danger. This was a significant departure from earlier abortion rulings, including the Stenberg decision, which require that laws restricting abortion include such a health provision.
The decision also reflected the impact of recent changes on the high court, notably the replacement in 2006 of the retired Justice O’Connor with Justice Samuel Alito. O’Connor had provided the fifth and deciding vote in Stenberg. By ruling with the court’s conservative wing, Alito provided the crucial fifth vote needed to uphold the law.
The majority opinion was penned by Justice Kennedy, who in 2006 had replaced O’Connor as the person most likely to be the court’s “swing vote” in very close decisions. Indeed, prior to this ruling, some legal analysts had argued that Kennedy’s recent attempts to position himself between the court’s liberal and conservative wings meant that, even though he had voted with the conservative minority in Stenberg and had authored a passionate dissent criticizing the majority for striking down Nebraska’s partial-birth abortion ban, he could not be reliably placed with either side in the partial-birth decision. But Kennedy’s decision made clear that his views had not significantly changed since Stenberg. The only difference was that now he was writing for the majority.
Kennedy devoted a substantial part of his majority opinion to differentiating the federal partial-birth abortion ban from the Nebraska ban that had been struck down by the high court in Stenberg. Although he had strenuously dissented in Stenberg, Kennedy did not overturn the court’s decision in that case; instead, he attempted to fit the Federal Partial Birth Abortion Ban Act within Stenberg‘s parameters.
New Regulations after Carhart
Emboldened by the decision in Carhart, a number of states stepped up efforts to regulate abortion. For example, 10 states – Alabama, Arizona, Florida, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Texas and Virginia – have enacted laws in recent years that require physicians to perform an ultrasound procedure prior to an abortion. In addition, a number of states have recently passed laws that, with very narrow exceptions, outlaw abortion beginning at 20 weeks into a pregnancy.
Laws mandating ultrasounds prior to an abortion build on the Supreme Court’s 1992 decision in Casey, in which the court upheld a state regulation requiring patients to give “informed consent” at least 24 hours before having an abortion. The new ultrasound laws create a more demanding consent requirement by compelling women seeking abortions to first undergo a trans-vaginal ultrasound procedure. Some of the new laws also mandate that the woman see an image of the fetus and listen to the sound of the fetal heartbeat prior to receiving an abortion. Other ultrasound laws require only that the health-care provider offer the woman the opportunity to view the image or listen to the heartbeat.
Several of the ultrasound laws have been challenged in federal court. For instance, in Texas Medical Providers Performing Abortion Services v. Lakey, a federal district court ruled in August 2011 that the Texas ultrasound law (which requires the abortion provider to perform the ultrasound, display and describe the ultrasound images to the patient, and make the fetal heart sounds audible to the patient) violated the First Amendment rights of physicians and patients by requiring a conversation that neither party may desire. In January 2012, however, the 5th U.S. Circuit Court of Appeals reversed the decision, ruling that the compulsory ultrasound law neither violated the First Amendment nor imposed an “undue burden” on women seeking an abortion.
In another case challenging this type of law, Stuart v. Huff, a federal district court in December 2011 ruled that North Carolina’s compulsory ultrasound law, which is similar to the law in Texas, violated the First Amendment rights of physicians and patients; the district court then issued a preliminary injunction barring enforcement of the law. The litigation in this case is continuing, and an eventual appeal to the 4th U.S. Circuit Court of Appeals is likely.
“Fetal Pain” Laws
Nine states – Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska and North Carolina – have enacted laws that prohibit abortions at 20 weeks or even earlier. These laws are based in part on a theory that a fetus, from 20 weeks onward, can experience pain from an abortion procedure. Those who support the theory assert that a fetus of 20 weeks has developed pain sensors and will react to stimuli, such as a needle, with increases in blood pressure, heart rate and stress hormones.
The doctors and reproductive-rights groups that oppose such laws assert that the scientific evidence does not support the “fetal pain” theory. They maintain that a fetus does not develop the neurological structures necessary to experience pain until at least 26 weeks of development. Furthermore, they argue, prohibiting abortions at 20 weeks’ gestation would impinge on the right to terminate, before the point of fetal viability, pregnancies that threaten women’s health or involve severe fetal abnormalities. Finally, they point out that while approximately half of fetuses can survive outside the womb at 24 weeks’ gestation, there are no known cases of fetal survival before 21 weeks.
Arizona has enacted a particularly rigorous fetal pain law; it bars abortions at 20 weeks, measured from the first day of the pregnant woman’s last menstrual period, and allows exceptions only in cases in which continuation of the pregnancy presents a severe risk of either death or serious and irreversible health impairment. A group of abortion providers in Arizona challenged the law in federal court. However, in July 2012, a federal district court refused to block enforcement of the law. The district court judge in the case, Isaacson v. Horne, found that credible scientific evidence supported the state legislature’s judgment that a fetus of at least 20 weeks’ development can experience pain. The judge also found that mid-pregnancy abortions present higher health risks to women than earlier ones, and that the state’s interests in protecting fetuses and women justified the prohibition.
The plaintiffs in the Arizona case quickly obtained a temporary order against enforcement of the law from the 9th U.S. Circuit Court of Appeals. The 9th Circuit heard full arguments in the case in November 2012, and the court is expected to issue a ruling on the law’s constitutionality later in 2013.
Eventually, the controversies over compulsory ultrasound procedures and prohibitions on abortion at 20 weeks of gestation could produce petitions to the U.S. Supreme Court to resolve the constitutional issues raised by these laws. For example, if the 4th U.S. Circuit Court of Appeals were to rule that North Carolina’s compulsory ultrasound law is unconstitutional, there would be a disagreement between the 4th and 5th Circuits. At that point, the Supreme Court could grant review in the North Carolina case to settle the conflict between the circuit court decisions.
The laws prohibiting abortions at 20 weeks conflict with Supreme Court rulings on precisely when abortions may be banned (beginning at the point of fetal viability, according to the Supreme Court’s rulings in Roe and Casey). For this reason, circuit courts seem likely to strike down such laws. On the other hand, Carhart signaled the high court’s willingness to rethink important premises in this legal debate, so it would not be surprising if the Supreme Court eventually were to take up the issues raised by this new restriction on the availability of abortions in the second trimester of pregnancy.
This report was written by David Masci, Senior Research Fellow, Pew Forum on Religion & Public Life,and Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law Emeritus at The George Washington University.