“The court didn’t make it any easier to win voting rights cases,” redistricting expert Justin Levitt told Bolts at the time. “It just declined to make it much, much, much, much, much, much harder.”

But the reprieve may have been temporary, and winning voting rights cases may still get much harder this year. A series of cases are working their way through federal courts that represent grave threats to Section 2 of the VRA, which prohibits denying the right to vote “on account or race or color,” language that extends into protection against racial gerrymandering. 

In these cases, conservatives are trying out a suite of new legal arguments, each of which would dramatically narrow the scope of the VRA. The cases are still making their way through district and appellate courts, with some early rulings favoring conservatives, at times authored by judges nominated by Donald Trump. Many are expected to end up at the Supreme Court, where members of the conservative majority have already expressed skepticism at various aspects of the VRA. 

Judges will decide if critical protections afforded by Section 2 of the VRA remain applicable to the present, whether the law applies to statewide races and coalition districts, and even whether voting rights groups can ever bring a lawsuit under Section 2—a sleeper case that already detonated in an appeals court last fall. The most acute stakes concern the rules of redistricting, with officials in GOP-run states including Alabama, Arkansas, Louisiana, North Dakota, and Texas proposing new interpretations that would fuel gerrymandering and undercut the voting power of communities of color. 

Here is your roadmap to four major legal threats that may further unravel the VRA in 2024, and what cases you should be watching.

1. What if private plaintiffs can no longer sue?

What is the threat to the VRA?

For decades, ordinary citizens and voting-rights organizations have brought lawsuits alleging VRA violations. These lawsuits, and the mountain of legal work and research that goes into them, have been critical to getting courts to strike down discriminatory legislation and create districts that allow communities of color to be represented by candidates of their choice.

In what’s undoubtedly the biggest threat facing the VRA, federal courts might invalidate that entire approach. Conservatives have made the case that only the U.S. Attorney General has the power to sue over violations of Section 2 of the VRA, and they landed a startling ruling by a district court judge last year. If the ruling stands, it would ban private parties from bringing these lawsuits, massively shrinking enforcement; when the Department of Justice is controlled by politicians hostile to civil rights, it may eliminate these VRA lawsuits altogether. 

What are the cases to watch?

Keep an eye on Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the challenge to Arkansas’s state legislative districts. 

After Arkansas Republicans drew new legislative maps in 2021, the state NAACP sued in federal court, arguing that Black Arkansans were underrepresented, and that this violated Section 2 of the VRA. But the district court judge who heard the case, Trump-appointee Lee Rudofsky, questioned whether the NAACP was even allowed to bring suit at all. 

It’s been a long-established practice for private parties to sue over Section 2 allegations. But Justices Neil Gorsuch and Clarence Thomas encouraged that question to be revisited in a 2021 concurrence, stating that courts have “assumed” that this is appropriate without ever deciding it. Walking into that breach, with an explicit appeal to Gorsuch, Rudofsky ended up dismissing the suit with a bombshell finding: “Only the Attorney General of the United States can bring a case like this one.” 

In November, a three-judge panel on the Eighth Circuit, one of the most conservative appellate courts in the country, affirmed that ruling in a decision authored by Eighth Circuit Judge David Stras.

If the ruling holds—the NAACP has asked the full Eighth Circuit to reconsider the decision, and an appeal to the U.S. Supreme Court is likely regardless—it would be sure to sideline a great many VRA cases. Besides the Arkansas litigation, high-profile cases last year that led to new maps in Alabama and Louisiana were brought by private plaintiffs, and would have been dismissed outright under Stras’ ruling.

The GOP has rushed to defend the holding and use it in other contexts. In December, the Republican attorneys general of twelve states (including Idaho’s Raul Labrador, Kansas’ Kris Kobach, and Texas’ Ken Paxton, all prominent far-right figures) signed on to an amicus brief asking the Fifth Circuit to take on the Eighth Circuit’s interpretation and rule against voting rights groups in the ongoing litigation around Alabama’s congressional map.

And in North Dakota, a state that falls within the Eighth Circuit, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe successfully challenged legislative districts in 2023 for diminishing the voting power of Native voters. State officials have agreed to use a replacement map for the 2024 election but have appealed the use of the map beyond that point. And in pushing back against the ruling last month, North Dakota’s Republican Secretary of State, Michael Howe, has already invoked the same argument that private parties cannot bring suits under Section 2 of the VRA, an argument that would outright silence the legal power of the two tribes that challenged the state.

2. The conservative case that times have changed

What is the threat to the VRA?

When the Supreme Court in 2013 struck down Section 5 of the VRA, which required certain jurisdictions to seek D.O.J. approval before changing their voting procedures, Chief Justice John Roberts wrote that “things have changed dramatically” in the South since 1965.

Some conservatives want federal courts to go even further, and dramatically re-interpret Section 2 on that same basis. And Justice Brett Kavanaugh last year gave them a reason to keep trying, doing so in the very same Alabama case in which he sided with the liberal justices to otherwise save the VRA. He noted that Justice Clarence Thomas’s dissenting opinion in the case argued that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” But Kavanaugh wrote that “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” The time may now be coming that’ll test Kavanaugh: Despite the massive barriers that people of color continue to face in exercising the franchise, multiple cases are working their way through the legal system in which defendants are renewing the argument that “things have changed” too much to keep enforcing Section 2.

What are the cases to watch?

Keep an eye on Milligan v. Allen, the continued litigation over Alabama’s congressional map, and Robinson v. Landry, the challenge to Louisiana’s congressional map 

Alabama this year will vote under a new congressional map that a federal court drew in late 2023 to create an additional district likely to elect a Black candidate. State officials have objected to the new map, and in so doing they’ve picked up on Kavanaugh’s argument: Alabama is asking courts to decide whether “the authority to conduct race-based redistricting extends to the present day,” regardless of its original justification. 

Louisiana officials have made a similar claim in their effort to fight court rulings that have struck down the state’s congressional maps as violating the VRA. (Louisiana adopted a new map creating a new majority-Black district this month due to a court-ordered deadline, but the litigation over that order continues.) 

Alabama has called the litigation against its original map “affirmative action in redistricting.” In 2023, the U.S. Supreme Court in 2023 struck down affirmative action in university admissions, and even though that case did not touch on voting rights, GOP officials in several states have weaponized the case to argue that the VRA is no longer applicable to the present.

In July, Louisiana officials filed a brief arguing that the affirmative action decision shows that “statutes requiring race-based classification” will “necessarily become obsolete.” They ask courts to settle “whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary.”

If the Fifth Circuit and the Supreme Court take the bait and say the established interpretation of Section 2 as no longer permissible, it would greatly narrow the legal space for racial discrimination claims.

It would amount to a judicial carte blanche for states to double down on discriminatory practices, except now shielded by the argument that the country is too enlightened to allow such practices.

3. Courts may shut the door to sue over statewide elections

What is the threat to the VRA?

Legal challenges often focus on how politicians have drawn districts: Have they respected the VRA in how they’ve separated or combined a state’s communities? But civil rights litigants have also contested the use of “at-large” elections, which are elections that elect the members of a body (say, a city council) throughout the jurisdiction, without the use of districts. Using this “at-large” structure for local races can prevent minority groups from electing a candidate of their choice; in some contexts, lawsuits have successfully forced counties and cities to convert their electoral system to use districts, allowing different communities to be better represented.

A case that’s percolating through the federal court system may decide whether similar lawsuits can ever be brought in the context of statewide elections. If that door is shut, it would put many government bodies whose members are elected at-large—most commonly, public utility commissions, boards of university regents, or boards of education—beyond the reach of VRA litigation.

What is the case to watch?

Keep an eye on Rose v. Raffensperger, the challenge to Georgia’s public service commission elections. 

In 2020, several Georgia voters sued over the use of statewide (“at-large”) elections for the five members of the state’s Public Service Commission, the body that regulates public utilities. They argued that a compact, Black-majority district could be created to elect a member of the Commission; a district court agreed after a trial, and ordered the state legislature to draw districts to that effect. But the state’s decision to appeal dragged out the process, leading to canceled elections. And in November, in a ruling authored by Judge Elizabeth Branch, another Trump appointee, a three-judge panel on the Eleventh Circuit reversed that decision. The panel held that the plaintiffs had not made out a sufficient claim under the VRA because their proposed remedy would “upset Georgia’s policy interests,” specifically, its “interest in maintaining its form of government.” In other words, because the Georgia legislature decided to make the Public Service Commission elected statewide, the court was obligated to respect that decision.

The ultimate resolution of this case will shape the viability of a lot of prospective litigation. This is believed to be the first case challenging the use of a statewide electoral system, so the district court’s decision had opened the door to similar challenges popping up elsewhere. If lawsuits like this can be brought against the use of statewide elections to pick members of state boards, voters may be able to target other elected state institutions whose “at large” membership is largely or all-white—Alabama’s Public Service Commission and Texas’s Railroad Commission come to mind—with the demand that they replace statewide elections with a system that providing communities of color a better opportunity to elect a member. 

If these challenges can’t be brought, however, communities of color may keep being systematically shut out with impunity.

4. The use of “coalition districts” is under threat

What is the threat to the VRA?

The VRA may compel states or localities to create districts that give voters in a racial group the opportunity to elect a candidate of their choice. In deciding whether such a district is required, federal courts assess whether a specific group’s size and voting behavior warrant such an opportunity district. But what happens when no single racial group is large enough to reach that threshold, but several do so when combined? 

In that context, some federal courts have required the creation of “coalition” districts, a practice that has boosted representation for people of color. For instance, they may consider Black and Latinx residents together to force the creation of a district in which voters would have a better shot at electing a nonwhite candidate. A case out of Texas is now threatening this practice, however. 

What are the cases to watch?

Keep an eye on Petteway v. Galveston County, the challenge to county commission districts in Galveston County, Texas. 

Following the 2020 census, Galveston County commissioners drew a new set of districts for their county commission; their map eliminated the county’s only “majority-minority” district—a coalition district in which Black and Latino voters make up a majority. Backed by conservative legal groups, the county argued during a trial last year that the VRA should not be used to protect multiracial coalitions; but a federal court sided with plaintiffs in restoring the district. Judge Jeffrey Brown, who was nominated by Trump, even wrote that the “circumstances and effect of the enacted plan were mean-spirited and egregious.”

But the conservative Fifth Circuit chose to suspend the decision until it could decide the county’s appeal, and the U.S. Supreme Court blessed that move in December over the objections of liberal justices. The appeals court made clear that it wanted to revisit its past decisions that have endorsed the use of coalition districts.

The case may hand conservative justices another shot at upending the redistricting norms, if they choose to weigh in for the first time on the permissibility of coalition districts. If coalition districts are no longer used as a remedy to racial discrimination, it may further cut the number of districts drawn to elect people of color; in racially diverse regions like Texas, it would make it harder to challenge maps that are resulting in a disproportionate number of white officials.

Some of these questions are playing out in Georgia. A federal court last year struck down the state’s congressional map, ordering an additional Black opportunity district. The legislature responded by carving up an existing coalition district and turning it into a Black majority district. The challengers have argued, unsuccessfully so far, that this is impermissible: that fixing a VRA violation cannot involve eliminating an existing coalition district.

The post Your Guide to Four Emerging Threats to the Voting Rights Act appeared first on Bolts.

Evans captured national attention when, in 2019, he drew an unusually scathing condemnation from the U.S. Supreme Court for engaging in racial discrimination during jury selection at Flowers’ many trials. Flowers was set free after nearly 23 years behind bars and awarded $500,000 by the state of Mississippi for his wrongful imprisonment. Yet Evans faced no consequences.

He continued to run his DA’s office without additional oversight, dodging bar discipline and a civil rights lawsuit, and cruising to re-election unopposed. In an apparent response to the Supreme Court ruling, a lawmaker introduced bills to reform jury selection, but those went nowhere in the legislature. Now Evans exits his office as he ran it, on his own terms, having set the stage for one of his deputies to take up his mantle. 

Evans, now 70, submitted his resignation letter to a state agency in late May, but made no public announcement regarding his departure to his constituents. A local judge revealed Evans’ plans in a court filing on Wednesday. Both documents were reviewed by Bolts.

I first came across Evans in 2017 when I began reporting on the Flowers case for In the Dark, a podcast that investigated Flowers’ ordeal at the hands of Evans.

At the time, Flowers was on death row at the Mississippi State Penitentiary in Parchman. He’d been convicted in 2010, at his sixth trial, for the 1996 murders of four people at Tardy Furniture store in a town called Winona. Flowers’ first three trials had resulted in convictions that were later overturned by the Mississippi Supreme Court due to prosecutorial misconduct; his fourth and fifth trials ended in hung juries.

We found that Evans had used unreliable and faulty evidence in his repeated prosecutions of Flowers, and our analysis of Evans’ discriminatory jury selection practices—in the Flowers case and beyond—revealed his troubling legacy as a prosecutor.

Montgomery County, Mississippi, where the Tardy Furniture murders took place, is nearly half Black. And yet, the juries that convicted Flowers never had more than one Black member; two were all white. Though the U.S. Supreme Court had ruled in 1986 that it’s unconstitutional to dismiss people from juries because of their race in a landmark decision known as Batson, Evans seemed to be doing just that. 

In Flowers’ second trial, Evans removed a Black juror who he claimed was in a gang and sleeping in the courtroom. Neither claim turned out to be true, and the judge ordered the man back on to the jury, ruling that Evans had violated Batson. In Flowers’ third trial, Evans used all 15 of his discretionary strikes to remove Black people from the jury. When the Mississippi Supreme Court reversed Flowers’ conviction from that trial, the court called Evans’ actions “as strong a prima facie case of racial discrimination as we have ever seen.”

Evans’ behavior in Flowers’ trials was part of a broader pattern at his office. In the Dark’s team spent months collecting trial records—over 115,000 pages of them—deciphering notes scrawled on jury lists, and analyzing transcripts of juror questioning. We found that, over a period of 26 years, Evans and his assistants had struck Black prospective jurors more than four times as often as they struck white ones. 

Evans’ alarming history gave the U.S. Supreme Court cause to throw out yet another of Flowers’ convictions in June 2019. The high court condemned Evans’ prosecution in stark terms. “The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury,” wrote Justice Brett Kavanaugh. 

Evans was undaunted. “It was a ridiculous ruling,” he told a local newspaper shortly after the decision. “They basically said there was nothing wrong with the case and reversed it anyway.”

For a brief time that year, it looked as if Evans might face consequences for his misconduct. He’d become an exception to the rule that prosecutors elude scrutiny, with multiple judges saying his practices for selecting juries violated the constitution.

An In the Dark listener had filed a complaint against Evans with the Mississippi Bar Association, which can reprimand, suspend or disbar attorneys who violate professional standards. And four of Evans’ Black constituents filed a lawsuit, alongside a local branch of the NAACP, seeking court-mandated oversight to force Evans to clean up his act. They asked a federal judge to “hold [Evans] accountable for the policy, custom, and usage of racially discriminatory jury selection” and to grant “an injunction to end this odious practice.” 

But the lawsuit was thrown out on procedural grounds, and the bar complaint has resulted in no known discipline. 

One state lawmaker, Derrick Simmons, authored a bill in 2021 that would have made it easier for defendants like Flowers to stop Evans, or any other prosecutor, in his tracks, if he looked to be discriminating against prospective jurors on the basis of race. But the bill died in a legislative committee. Simmons, a Black Democrat, tried two more times, filing the bill again in the 2022 and 2023 sessions, and twice more it died without ever making it to the floor for a vote. 

Progress on this issue has been slow-moving throughout the country, but in recent years, some states have made strides by limiting the ways lawyers can use peremptory challenges, the discretionary strikes that allow them to remove jurors without having to state a cause. Washington and California have both adopted rules aimed at preventing unconscious or implicit bias in their use. California’s 2020 law, for instance, makes it easier to argue that the removal of a prospective juror violates Batson, barring the attorney that asked for the removal from defending it with reasons that are essentially proxies for racial discrimination, like having a relative who’s been stopped by police or having a general distrust of law enforcement.

The Arizona Supreme Court went a step further in 2021, eliminating peremptory strikes altogether. Now jurors in Arizona can be dismissed only when a judge has determined they are unable to serve.

Peter Swann, former chief judge of the Arizona Court of Appeals, filed the petition to Arizona’s Supreme Court that resulted in the change. He says he was inspired to take action after an especially egregious Batson case came before him on the bench. “I usually find that when a tool is being used unfairly, taking it away is often the only way to achieve fairness,” he told me. “It’s very hard to have a view that discrimination will happen in jury selection if you take away peremptories.”

Data collected by the court system in Maricopa County, where more than half of Arizonians live, shows that this change has made juries more diverse. The share of jurors identifying as Hispanic increased by 15 percent in criminal trials between 2019, the last full year before the reform when jury trials were unperturbed by the pandemic, and 2022, the year the change took effect. On civil juries, the share of jurors of color saw an uptick of roughly 15 percent over the same period.

“A successful Arizona experiment, which we now have, is going to add fuel to the fire,” Swann said. “Arizona was the first domino. Eventually they’re going to start falling.”

It seems unlikely that Mississippi will be next.

“Legislators in Mississippi aren’t interested in strengthening Batson,” said Tucker Carrington, who heads the Mississippi Innocence Project and was one of Flowers’ lawyers. “Legislators know that race affects peoples’ lived experiences, and many of them are also lawyers who don’t want to make it harder to control which lived experiences end up on their juries.”

Carrington says eliminating peremptories is a step in the right direction, but he also thinks that Batson needs a more ambitious overhaul in order for juries to truly become fair.

“Doug Evans is an egregious example, but the criminal justice system is full of prosecutors like him. Under the Batson paradigm, nothing much happens to them. They get a slap on the wrist and then it’s back to business as usual,” Carrington said. 

Indeed, Evans was allowed to try Flowers again and again, even after he was caught discriminating in Flowers’ trials. Just months after the Supreme Court’s rebuke made him a national figurehead of misconduct, Evans was elected to a sixth term as DA of Mississippi’s Fifth Circuit Court District; no one even ran against him. Last fall, he was bold enough to throw his hat into the ring for a local judgeship. It was there that he finally suffered a setback, losing to a popular local attorney in a runoff. 

Not long after, with his job as DA back in play in the 2023 election cycle, Evans let a February filing deadline pass without entering the DA’s race, forgoing a reelection bid.

He then told his staff he would leave office early, on June 30, in the middle of the contest to fill his seat. He sent his resignation letter to the state of Mississippi in May, which I learned through a public records request to the governor’s office. But he made no statement to the public that had kept him in his post for decades. I called Evans to ask about his imminent exit, but he hung up on me once I identified myself and did not respond to a later text message.

Circuit Judge Joey Loper, who presided over two of Flowers’ trials and ordered his release from jail in 2019, on Wednesday appointed Mike Howie, an assistant prosecutor in Evans’ office, to serve as interim DA upon Evans’ departure.

Evans’ long-term successor will also come from within his office. Only two candidates are running to replace him in the upcoming election, and both are his assistant DAs.

The winner will be decided in the Aug. 8 GOP primary in the state’s Fifth District, which covers Attala, Carroll, Choctaw, Grenada, Montgomery, Webster, and Winston counties. 

One of the candidates, Adam Hopper, is the long-time staffer who did Evans’ bidding in the final days of the prosecution of Curtis Flowers. It was Hopper who appeared in court in late 2019 to say his office still had a strong case against Flowers and to oppose his release from jail, even after his conviction had been overturned by the U.S. Supreme Court. Hopper didn’t respond to requests for comment.

His opponent, Rosalind Jordan, is one of Evans’ newer assistant DAs. Jordan, a former public defender, told me that “it’s important that you go the extra mile in making sure that you do your jury selection properly, and that you don’t discriminate based on sex or race or anything like that.” But she also said she thought no change was needed at the DA’s office.

“What I’ve witnessed since I’ve been here since 2021, I’ve found to be completely in compliance with our ethical code and the rules of criminal procedure,” Jordan said.

“I would just encourage continuing to follow that.”

On Friday, the same day Evans leaves office, the U.S. Supreme Court declined to hear an appeal by Tony Terrell Clark, a Black man sitting on death row in Mississippi, who alleged that his conviction was marred by Batson violations. (The case was not prosecuted by Evans’ office.) The state Supreme Court rejected Clark’s challenges last year. In response to the U.S. Supreme Court’s refusal to take up the case, Justice Sonia Sotomayor wrote an excoriating dissent warning that Mississippi courts seem to be “[carrying] on with business as usual,” rather than heeding her court’s 2019 decision in Flowers’ favor. 

“Because this Court refuses to intervene, a Black man will be put to death in the State of Mississippi based on the decision of a jury that was plausibly selected based on race,” Sotomayor wrote in reference to Clark, joined by Justices Elena Kagan and Ketanji Brown Jackson. “That is a tragedy, and it is exactly the tragedy that Batson and Flowers were supposed to prevent.”

“The result is that Flowers will be toothless in the very State where it appears to be still so needed.” 

The article was updated on June 30 with a response from the governor’s office, and with a new order by the U.S. Supreme Court in the case of Tony Terrell Clark.

The post Mississippi DA, Exposed for Striking Black Jurors, Leaves His Office On His Own Terms appeared first on Bolts.

The 51-year-old has a felony on his record, like all of the people DeSantis had arrested. He wondered if the governor would come after him next, because he had just voted in the August primary.

Johnson was convicted of drug trafficking and released in 2002 after serving 22 months in prison. For years after his release, he was barred from voting due to Florida’s draconian rules. In 2018, voters passed Amendment 4, a landmark ballot initiative that overrode the 19th century policy barring anyone with a felony conviction from voting for life. Amendment 4 allowed people convicted of most felonies to vote once they complete their sentence.

Johnson’s first time voting was in 2020 and he’s been engaged with electoral politics ever since. 

But a series of arrests this year have rocked the reform’s promise. Earlier this year, county prosecutors charged people for voting despite owing court debt, due to a law signed by DeSantis in 2019 that rolled back Amendment 4 by imposing financial payments. The people who were then charged in August had been convicted of murder and sexual assault, offenses carved out by Amendment 4. But several said that they thought the amendment allowed them to legally vote, especially because they had been provided with voter IDs by local election officials—with the approval of the DeSantis administration. 

Now, leading up to the November 8 general election, Johnson is wondering what legal stunt DeSantis might pull next. 

 “It makes you think twice before going to vote,” he said.

A new report by the Sentencing Project estimates that over 1.1 million Floridians are barred from voting this fall due to a past felony conviction in Florida. Others may have regained their right to vote but shy away from the polls over the uncertainty caused by the recent events. And given the vast racial disparities in Florida’s criminal legal system, the predicament disproportionately affects African Americans.

More than one in five Black adults in the state were disenfranchised in 2016. Amendment 4 cut down that number, but 13 percent of Black adults are still barred from voting in the state, which compares to 7 percent of the rest of state’s population.

Of the 19 people whose August arrests for voter fraud were reviewed by The Palm Beach Post, 15 are Black.

“DeSantis’ arrests have built upon a culture of fear that already existed around voting, but he has added new consequences, especially for Black people in particular,” said Kevin Anderson, a defense attorney who represents Leo Grant Jr., one of the people who were arrested in August.

Backed by law enforcement from his Election Crimes and Security Office at a press conference on Aug.18, DeSantis said the voters had committed fraud, which would require that they had knowingly and willfully violated the law so they could cast their votes.

“The state of Florida has charged and is in the process of arresting 20 individuals across the state for voter fraud,” DeSantis said to a round of cheering and applause. “They did not go through any process. They did not get their rights restored, and yet they went ahead and voted anyways. That is against the law, and now they’re going to pay the price for it.”

At another press conference 12 days later, DeSantis then put the blame on local voting jurisdictions. “Some local jurisdictions don’t care about election laws. We do, and we think it’s important. If you’re not able to run an election right, we want to hold people accountable,” DeSantis said.

But DeSantis’ claims have since come under scrutiny. He failed to mention during his press conferences that government officials had told the people who were arrested that they were allowed to vote. And DeSantis’ own election investigation chief had sent an email to local jurisdictions telling them that they did nothing wrong when the returning citizens voted in August.

Last week, one of the arrests was thrown out by a South Florida judge, who said that the state did not have jurisdiction to charge Robert Lee Wood. The DeSantis administration said that it intends to appeal that decision.

“The DeSantis story about the arrests after the primary has already started to fall apart, but who knows what he’s capable of next,” Johnson said.

DeSantis created a new police force to investigate election crimes in April, spending an estimated $3.7 million in startup costs. It employs agents tasked with investigating election-related crimes, which are very uncommon in Florida. 

The DeSantis administration has not responded to multiple requests for comment on this story.

Some of those who were arrested have come forward to explain that they thought their rights had been restored when Amendment 4 passed, and that the state had given them every indication that they were eligible to vote.

Leo Grant Jr. had thought he was just fulfilling his civic duty, until law enforcement arrived at his door in August. His defense attorney, Anderson, says that the DeSantis administration used people’s lives to advance his political agenda and create an environment for rumors to spread in Florida about rampant voter fraud.

“This process was weaponized to make it appear that you have all of these people out in the community casting votes that they ought not cast, when really what has happened is that they’ve been lured,” Anderson said. “So it’s like a game that’s being played with their lives.”

Anderson—who has 20 years of experience and has handled hundreds of state and federal criminal and police liability cases—said that DeSantis has created “an environment of intimidation,” which will affect potential voters who may now be worried about going to cast their vote after the arrests. 

“Intimidation is one tactic that has been used in the past against Black people for voting, and it is being used now,” he said.

Fear tactics have been wielded to mute Black people’s voices and suppress their votes throughout American history. The Ku Klux Klan did this, often through violence, in the late 1800s and early 1900s. This year, in Florida and in other states, intimidation and election-related threats of violence have made securing polling locations more difficult leading up to elections.  

But legislation has also functioned as a means of voter suppression. Prior to Amendment 4 being passed, Florida’s constitution had disenfranchised all citizens who had been convicted of any felony offense dating back to Florida’s first constitution in 1838. It said, “all persons convicted of bribery, perjury, forgery, or other high crime, or misdemeanor” should be barred from voting. This was amended in 1868 to remove the language about misdemeanors. In 1968, the language was amended again, to name felonies as the specific reason that people should not be able to vote.

In an analysis of Florida’s disenfranchisement rules in 2015, Allison Riggs wrote in The Journal of Civil Rights and Economic Development about the “enormous burden that these rules place on people of color seeking to participate in the political process.”  Even after passage of Amendment 4 in 2018, many Floridians are barred from voting, including if they are in prison, on probation, and on parole—outcomes that are far likelier to affect Black Floridians.

Shortly after Amendment 4 was adopted, DeSantis signed Senate Bill 7066 into law, which prohibited returning citizens from voting unless they paid off legal fines and fees imposed by a court pursu­ant to a felony convic­tion.

This caused anger and confusion among those who had struggled for the right to vote, and civil rights groups filed a lawsuit accusing the governor of creating a “pay-to-vote” system. The chaos created by this rule, in addition to the more recent voter arrests, led several civil rights groups to create a legal guide for returning citizens who wish to vote.

This month, body camera footage of one of the arrests was published by The Tampa Bay Times. It showed Tony Patterson, another of the voters charged, in a state of shock that he was being arrested. 

“What is wrong with this state, man?” Patterson asked the police as they arrested him. “Voter fraud? Y’all said anybody with a felony could vote, man.” 

This isn’t DeSantis’ first attempt at influencing voting procedures in Florida with an aim of impacting outcomes. Earlier this year, his administration pushed a redistricting plan before the legislature, which a Florida circuit court judge found to be unconstitutional for its attempt to dilute the Black vote. The legislature approved the plan, and now the DeSantis administration is refusing to release documents related to its creation, after the League of Women Voters and individual voters filed a lawsuit against the redistricting in April. 

Neither has DeSantis shied away from overruling the will of voters once they’ve already spoken. In August he removed a democratically-elected state attorney from office based on the prosecutor’s statements that he would not charge cases dealing with abortion or anti-transgender legislation, and claims to have “reviewed” several more. It’s created uncertainty among candidates that they could be plucked from their positions even after winning. 

“In the end, he just wants to win,” said Robin Lockett, regional director of the non-profit activist group Florida Rising. “He’ll use any tactic he can, no matter how undemocratic, to try to get his way.”

Lockett works to register voters in Florida, along with fighting for racial and social justice causes. She doesn’t have a felony conviction, but talks to people who do regularly through her work. She says that DeSantis has reached a new level of electoral desperation.

“You don’t see him out there arresting people who are most likely going to vote for him,” Lockett said. “He’s targeting people who he wants to suppress. He wants returning citizens, and especially Black people, to go back to the shed, to go underground.”

Rodney Johnson says that even though DeSantis’s actions make him think twice about voting, he’ll still be heading to the ballot box in November. 

“When you make the effort to turn your life around, you want to be able to have your voice heard, just like any other citizen.”

He won’t let a political agenda based in fear stop him from moving forward, he says, although he’s unsure if that will be the case with everyone who has been convicted of a felony. 

“A lot of us have been through so much here in Florida, rents are going up and we’re just trying to survive,” Rodney said. “People have kids and families to think about. There are plenty of voters who might not take the risk, in case DeSantis decides to pull something shady again. But I have to do what I know is right.”

The post Arrests Over Voting Escalate a “Culture of Fear” in Florida appeared first on Bolts.

In a ruling issued earlier this month, a federal court left a Black man on death row despite the emergence of new documents that suggest prosecutors sought to eliminate Black people from the jury pool. 

The decision reveals the length to which judges will go to permit prosecutors’ maneuvers,  and underscores the urgency of political solutions that could create meaningful constraints on prosecutors.

It’s well-established that the rule barring race discrimination in jury selection is inadequate, bordering on useless. The rule, established in the 1986 Supreme Court case Batson v. Kentucky, is so narrow and its burden of proof so high that prosecutors have had little trouble devising ways around it. Finding a Batson violation—that prosecutors struck a potential juror because of race—ultimately requires finding that prosecutors intentionally discriminated and that any acceptable reason they gave for removing a juror was a lie, knowingly offered to conceal the racism driving their conduct. 

Part of Batson’s deficiency is that it leaves judges, a great many of whom are former prosecutors themselves, wide leeway to defer to prosecutors. In most cases, a judge simply taking the prosecutor at their word is all it takes to kill a Batson claim. And prosecutors have developed training manuals on how to get all-white juries while going through the hollow motions of legal compliance. 

The ruling by the Fifth Circuit Court of Appeals this month, along with the 2019 district court ruling it affirms, exemplifies judges’ extraordinary deference to prosecutors, and the contorted reasoning they use to avoid holding prosecutors accountable for even the most obvious racism. 

The Fifth Circuit denied relief to James Garfield Broadnax, in a decision written by Edith Jones, a conservative judge who once complained that a last-minute appeal in a death penalty case made her miss a birthday party. Broadnax was sentenced to death in 2009 in a case where prosecutors tried to exclude every Black person from the jury pool. Prosecutors even highlighted each potential Black juror on written documents that they then withheld and that only recently surfaced. The Dallas district attorney’s office, where they worked, has a long history of racial discrimination; it had “for decades, followed a specific policy of systematically excluding blacks from juries,” the Supreme Court found in 2005.

But rather than face the discrimination staring at them, the district court and the Fifth Circuit panel recast much of this evidence as the prosecution’s good-faith efforts to comply with Batson. 

At Broadnax’s murder trial, prosecutors used their peremptory strikes—which allow lawyers to remove potential jurors for virtually any reason or no reason at all—against all seven Black potential jurors and one Latinx potential juror. They pointed to factors that disproportionately affect Black people in the United States, for instance striking one potential juror because she had relatives in jail. The trial judge initially permitted this tactic before reseating the last Black juror, offering a make up of sorts for the racism he had allowed before then: “I’m going to grant the Batson challenge and I’m going to do so because of the fact that there are no African-American jurors on this jury and there was a disproportionate number of African-Americans who were struck,” he said. 

That ruling gave Broadnax 11 white jurors and one Black juror whom the prosecution had tried to remove.

In addition, prosecutors had marked the names of each Black juror—and only the Black jurors—in bold font on a spreadsheet. Prosecutors had withheld this document for years, until after Broadnax had finished his state court appeals and filed his habeas petition in federal court. 

This spreadsheet was the focus of the Fifth Circuit’s opinion. The court had to decide whether the rules governing federal claims of unlawful imprisonment would allow Broadnax to submit the spreadsheet as new evidence of race discrimination, or if, as the federal district court had decided, the document must be excluded, effectively dooming Broadnax’s claim. 

In other cases, prosecutors have tried to spin such evidence into a positive, claiming they marked the Black jurors they eventually struck from the jury pool as part of their efforts to avoid discrimination. 

In Foster v. Chatman, this drew the rare wrath of the U.S. Supreme Court. In that 2016 case, prosecutors in Butts County, Georgia, had a list of potential jurors with the names of all four Black jurors highlighted in bright green (a legend indicated that the highlighting “represents Blacks”), and then struck them from the jury. The state of Georgia later argued that, while this may look bad, it reflects how the prosecution was “thoughtful and non-discriminatory in [its] consideration of black prospective jurors,” and worked “to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual.” 

The Supreme Court didn’t buy it. “The focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury,” the Court wrote, and any suggestion to the contrary “reeks of afterthought.” 

But in Broadnax’s case, both the federal district court and the Fifth Circuit declined to follow the Foster ruling’s lead. They announced that marking Black jurors on a list and then trying to strike all of them could have indicated benevolent race-consciousness intended to comply with Batson. 

They reasoned that the DA’s office’s history of racist jury selection may actually count in its favor. Since prosecutors have been caught discriminating before, the courts explained, they should be tracking the race of potential jurors to better protect people of color, and judges could assume that was their intent with the spreadsheet.

The district court said “it would have been professionally irresponsible for the Dallas County District Attorney’s Office (in 2009) to have failed to identify the members of the remaining jury venire who were members of a protected class and against whom it might have been preparing to exercise a peremptory challenge.” The Fifth Circuit echoed this, explaining that, given its history, the “office would have had considerable motivation to identify which jury venire members belonged to a protected class when preparing to defend its use of peremptory challenges.” 

Absent from this analysis is the fact that prosecutors attempted to strike every single juror they were supposedly trying to protect. 

Looking at the evidence this way, the Fifth Circuit found that the spreadsheet was, at best, unimportant—certainly “no smoking gun,” it wrote—and affirmed the district court’s decision not to consider it. In a system that routinely holds people’s history of misconduct against them, prosecutors got a free pass, and James Broadnax remains sentenced to die.

There is some chance that the Supreme Court will intervene, as it did in the high-profile case of Curtis Flowers, decided in 2019. But that would only underscore how slow and nearly random securing justice under Batson can be. Flowers sat on death row for decades and was tried six times for murders he almost certainly didn’t commit. Over that time, 61 of the 72 jurors who decided his fate were white. And although Flowers won, the Supreme Court declined the opportunity to use his case to strengthen Batson, instead emphasizing that its ruling was limited “to the extraordinary facts of this case.” Moreover, the prosecutor in Flowers’s case, Doug Evans, has so far evaded accountability, and a civil lawsuit against him was dismissed last year. 

But elected lawmakers don’t have to wait for judges to battle discrimination. Last year, California passed legislation that targets how implicit bias and racial stereotypes often influence jury selection, accounting for racism that is hard to detect and can infect jury selection even when prosecutors do not intend it. This can allow relief without defendants having to prove that prosecutors were intentionally discriminating against potential jurors of color. Among other things, the law presumptively bars an enumerated list of reasons that prosecutors have often used to exclude Black jurors, including “having a negative experience with law enforcement” and “expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.” The Washington Supreme Court adopted a similar rule in 2018. 

Such a law may have helped Broadnax, had it been in place in Texas at the time. It certainly would have made it harder for prosecutors to get away with striking one juror because she had relatives in jail, and another because she had children but no employment and “desperately wanted to sound intelligent” — both “race neutral” explanations that prosecutors used to defeat Batson challenges in his case. 

When he authorized most of prosecutors’ requests to exclude jurors of color, the trial judge in part blamed  Batson’s exacting standard of intentional discrimination. “The problem … is that if you grant a Batson challenge it implies some sort of nefarious intent on the part of prosecutors … you’re essentially saying that the prosecutors are lying,” he said. While Broadnax argued at trial and throughout his appeals that he proved Batson violations, a law like California’s would have also enabled the judge to grant the defense team’s objections without finding “nefarious intent.”

But reforms to jury selection require courts to enforce them, and they will not be enough as long as judges excuse even overt, documented discrimination, giving prosecutors every benefit of the doubt. That’s why there’s a growing chorus to abolish peremptory strikes altogether, and allow lawyers to strike only those jurors who are not qualified to serve. That’s what Justice Thurgood Marshall argued when he concurred in Batson itself. The “inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds,” he wrote, “should ideally lead the Court to ban them entirely from the criminal justice system.” 

In the meantime, Broadnax remains on Texas’s death row, his legal challenges nearly exhausted. Now only the U.S. Supreme Court can vindicate his right to jury of his peers, selected without the taint of racial discrimination.

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