Extraordinary dissent

Judge issues extraordinary dissent in voting rights case

By Josh Gerstein

A federal appeals court judge issued an extraordinary dissent in a voting rights case Tuesday, including 11 pages of images of people killed in the struggle against racial segregation and for civil rights for African Americans.

Sixth Circuit Judge Damon Keith authored his impassioned dissent in a case over voting law changes the Ohio legislature passed in 2014, imposing stricter requirements on absentee and provisional voters and restricting the assistance poll workers can provide.

A District Court judge tossed out the changes, finding them to be an undue burden on voting and to have a disparate impact on black voters.

In the majority ruling Tuesday, 6th Circuit Judge Danny Boggs upheld the decision rejecting the stricter requirements, but said the district court judge was wrong to toss out Ohio's shortening of the time period to fix mistakes on such ballots or present acceptable identification and the state's new limits assistance to voters. The majority opinion, joined by Judge John Rogers, also reversed the lower court's findings that the new policies disproportionately impact minority voters.

The ruling prompted a withering response from Keith, the third judge on the panel.

"By denying the most vulnerable the right to vote, the Majority shuts minorities out of our political process," Keith wrote.

"Rather than honor the men and women whose murdered lives opened the doors of our democracy and secured our right to vote, the Majority has abandoned this court’s standard of review in order to conceal the votes of the most defenseless behind the dangerous veneers of factual findings lacking support and legal standards lacking precedent. I am deeply saddened and distraught by the court’s deliberate decision to reverse the progress of history."

Before delving into the legal aspects of the case, Keith listed and included photos of 36 "martyrs" in the civil rights fight — some well known, like Rev. Martin Luther King Jr.; others less so.

"States are audaciously nullifying a right for which our ancestors relentlessly fought and — in some instances — even tragically died," Keith declared.

In the majority opinion, Boggs replied that the history was instructive, but not determinative of the result in the case before the court.

"We deeply respect the dissent’s recounting of important parts of the racial history of our country and the struggle for voting rights, and we agree that this history may always be appropriately borne in mind. However, that history does not without more determine the outcome of today’s litigation over voting practices and methods," Boggs wrote.

Keith replied: "While the Majority aptly notes that these historical statements do not dictate the outcome of this case, it is imperative that we assess the efforts to undermine the right to vote as an historical operative that did not begin with the Majority’s opinion and unfortunately will not end with it."

Keith also takes a few more swings at his colleagues for their opinion.

"The complete lack of sensitivity and unbridled privilege with which the Majority exercises its view of the trivial is exactly what led to the constitutional and statutory protections at issue in this case. Still further, as I have stated throughout this dissent, the stakes of these proceedings are hardly small, insignificant, or trivial; instead, the impact is worthy of countless hours of the Ohio congressional time, energy, and efforts in not only passing these restrictive measures, but defending them. The rush to set forth and pass these measures belies any claim that what is at stake is slight, minor, unimportant, trifling, trivial, insignificant, inconsequential, negligible, nugatory, or infinitesimal," he wrote.

Keith, an African American, was appointed to the appeals court by President Jimmy Carter. Boggs, who is white, was appointed by President Ronald Reagan. Rogers, who is white, was appointed by President George W. Bush.

The plaintiffs in the case, an organization supporting the homeless, could seek review by the full bench of the 6th Circuit or the Supreme Court.