Judge in today’s DNC foreclosure lawsuit hearing specializes in last-minute election battles

The high-stakes lawsuit filed as a result of Michigan Messenger’s reporting on Republican plans to use foreclosure notices as a basis for challenging voters at the polls on Election Day will be heard by a judge today who is no stranger to controversial cases with pressing deadlines.

Judge David Lawson, a member of the U.S. District Court for the Eastern District of Michigan, already issued two rulings on very contentious issues this year. One ruling upheld the constitutionality of the Michigan Civil Rights Initiative (the 2006 referendum that forbade the use of racial preferences by the state). The other ruling prohibited oil and gas drilling in Huron-Manistee National Forest in Northern Michigan.

Today Lawson will decide the merits of a lawsuit filed by the Obama campaign and the Democratic National Committee (DNC) against the Macomb County GOP, the Michigan GOP and the Republican National Committee (RNC) seeking an injunction against the use of foreclosure lists as the basis of Election Day challenges. Macomb County chairman James Carabelli told Messenger reporter Eartha Melzer that the Party planned to do that.

The use of foreclosure lists would be a new form of what is called “caging,” or systematic efforts to disenfranchise voters on technicalities — something the RNC has been caught doing several times in the past and has promised in judicial consent decrees not to do anymore.

Lawson was nominated to the federal bench by President Clinton in 1999 and confirmed by the Senate in May 2000 by a unanimous vote. A graduate of Wayne State University Law School, he spent 24 years in private practice. He also served as a special assistant attorney general in Michigan and as a special prosecutor in Oakland County.

“Judge Lawson has a well-deserved reputation for fairness, impartiality, and integrity,” Dan Ray, a professor of constitutional law at Cooley Law School, told the Michigan Messenger. “He treats all those who appear before him — parties, counsel, and witnesses — with dignity and respect, and he also dignifies and respects the rule of law.”

Lawson is also no stranger to last-minute legal fights over voter suppression and voter fraud that require expedited consideration just prior to an election. In 2004, Lawson heard a lawsuit filed by the American Civil Liberties Union (ACLU) against Secretary of State Terri Lynn Land for her refusal to count provisional ballots cast at the wrong precinct.

By law if there is some discrepancy over a voter’s residency or identity, the voter can cast a provisional ballot along with an affidavit swearing that he or she is registered to vote legally. The elections clerk then must investigate to make sure that person is a legal voter and, if so, that ballot is counted and added to the vote totals. Land had issued a memo saying that if someone goes to the wrong precinct to vote, the state would not count their provisional ballot. The ACLU filed suit, arguing that this was a violation of the right to vote.

Two weeks before the 2004 election Lawson issued a ruling granting a preliminary injunction and ordering Land to count all provisional ballots even if they were cast at the wrong precinct if it was determined that the ballot was cast by a legal voter.

The arguments in that case in many ways tracked with the arguments in the current case, with one side arguing that the right to vote had to be preserved by all possible means and the other side arguing that doing so would risk voter fraud by possibly allowing someone to vote at multiple precincts. The Bush Department of Justice filed a brief in the 2004 case defending the refusal to count the provisional ballots.

Lawson came down firmly on the side of voting rights, noting that before the ballot is counted the clerks must check to make sure the person was a legal voter and had not voted elsewhere, thus protecting against the risk of duplicate voting. Reaction from Republicans was immediate and outraged, with one conservative site calling the ruling “another victory for vote fraud.” Lawson, however, ruled that the risk of voter fraud was being significantly exaggerated by the Republicans:

“The defendants also warn that allowing out-of-precinct provisional voting will increase the likelihood of voter fraud. They describe the specter of hoards of voters bussed in to foreign precincts overwhelming the capacity of local election officials, causing long poll lines, and discouraging voters from casting votes in their own precincts. The Court believes that these particular concerns are overstated. Preventing election fraud and preserving the “purity of the ballot box” certainly is a legitimate State interest. However, Michigan enjoys an election history that is relatively fraud-free. In 1997, Michigan’s attorney general stated that “as the chief law enforcement official of the State of Michigan, I am not aware of any substantial voter fraud in Michigan’s elections. I have not received complaints regarding voter fraud. Moreover, the state’s chief elections official, Secretary of State Candice Miller, confirmed the fact that Michigan does not have a voter fraud problem when she stated: ‘We have no real evidence of voter fraud in Michigan. Michigan has historically had very clean elections.’ The defendants have offered no evidence that circumstances have changed.

“[Michigan Elections] Director [Christopher] Thomas acknowledged in his testimony that he was not aware of any threat to compromise the integrity of the polls at the upcoming general election or to bus voters to the wrong precincts. Moreover, the State retains the ability to prosecute any “person [who] shall procure, aid, or counsel another person to go or come into a township, ward, or voting precinct for the purpose of voting at an election,” or who “offers to vote or attempts to vote more than once at the same election either in the same or in another voting precinct.”

So what are the chances that Lawson will again come down on the side of voting rights? This is difficult to predict. As Gerald Hebert, executive director of the Campaign Legal Center, told the Michigan Messenger, “I think these cases hinge on their facts, so it’s extremely important to find out exactly what the plans were and the reasons for gathering the names of foreclosed voters.”

Hebert believes that the charges against the GOP are probably legitimate. “What other purpose would a campaign have for gathering the names and addresses of those who’ve had their homes foreclosed if not to challenge their right to vote?”

Hebert, who spent two decades in the Justice Department under Republican and Democratic presidents alike, much of that time in the Voting Rights Division, placed this latest skirmish in the context of a long history of similar efforts by the GOP, writing on his blog that “the GOP has a long history of engaging in voter suppression efforts. The Party has persisted with the practice because it has proven effective. The GOP schemes have also led to injunctions being imposed by the courts barring specific voter suppression efforts. If the claims of possible vote challenges to those who have received foreclosure notices were against a clean historical slate, then such claims might be a little hard to believe. But they aren’t. They arise against a stain of GOP vote suppression extending over a number of decades.”

Rick Hasen, an election law expert at Loyola University in California, isn’t sure this is going to help the Democrats win this case. Writing on his own blog, Hasen noted that the Michigan GOP had denied any plans to use foreclosure lists to challenge voters and said that this was really the key to the case, saying,

“You can’t get an injunction against a defendant unless you can prove ‘propensity,’ that the defendant is likely to engage in the action sought to be enjoined. So this comes down to one of two things: (1) the Democrats don’t believe the denials of the county Republicans, and so even if they can’t get an injunction because they can’t prove propensity, they can at least get Party officials to come to court and swear they are not going to engage in the conduct. (2) This is great P.R. for Democrats. Just as Republicans bring up (often unsubstantiated) charges of voter fraud close to election day, Democrats do the same with voter suppression.”

But Bob Bauer, general counsel to the Obama campaign, when asked by the Michigan Messenger whether they hoped that the discovery phase of the case would reveal memos and e-mails from within the Macomb County and Michigan GOP that prove that they were planning to use foreclosure lists in this manner, said, “We expect that that’s what we’ll find.”

“We’ll also, we hope, track the pattern of communication within the GOP on a national basis that shows how this particular form of caging fits within their national plans,” Bauer said. If the subpoenas they planned to issue in the case reveal such evidence, that would help establish propensity in the case. During discovery, the plaintiffs will be able to request documents from the defendants, issue subpoenas and take depositions.

Hasen, however, doubts this would be enough.

“Whether or not the GOP actually planned at some point to use the list, the publicity surrounding the list now has made doing so radioactive,” he told the Messenger. “It will be interesting to see if Bob Bauer is right that discovery will in fact show such a plan, but even if it does, the question before the courts is whether there is a realistic chance now that such lists would be used to challenge voters.”

Hebert thinks that the bar might not be set so high for getting an injunction.

“If someone has collected that kind of information and there’s no other legitimate purpose to it, who’s to say that absent an injunction they’re not going to go out and do it anyway on Election Day? It seems to me that the propensity to do it in November rests on two things: The fact that there is a historical trend of voter caging by the GOP and whether there were plans to challenge foreclosed voters in the first place. If they can show there was such a plan, it seems to me that an injunction would be necessary to insure that people’s right to vote is not taken away.”

Hebert noted that there are other ways the GOP could use the foreclosure lists to challenge voters without making that explicit.

“It’s true that using the foreclosure lists may be radioactive and they may have decided not to do that explicitly, but they may still be planning to do a massive challenge and incorporate the names and addresses from the foreclosure list into that program and use the larger list to challenge voters. In Montana, the GOP has now challenged pretty much half the population based upon the fact that the addresses in the state database don’t match the addresses in the national database. But there are any number of ways that information in the two databases can fail to match without having anything to do with whether a person is a valid registered voter, including clerical error, a name change due to marriage or divorce, initials being used instead of a spelled out name, a missing suffix like ‘junior’ or ‘senior,’ and so forth.”

Whatever the evidence reveals, Hebert said that Lawson will evaluate it objectively. He described the judge as “a highly regarded judge who is careful and has a good reputation.”

There is a hearing scheduled today to consider the Democrats’ motion for a preliminary injunction and the Republicans’ motion for dismissal. The GOP asked for an expedited hearing on the motion to dismiss, which prompted Democrats to ask for expedited discovery. What that means, in essence, is that the Republicans asked Judge Lawson to dismiss the case and the Democrats asked him to allow them to file requests for the documents that may help them prove their case. The judge agreed to allow that discovery, the results of which will presumably be revealed at today’s hearing.