Voting Rights Challenges in a Post-Katrina World:
With Constituents Dispersed, and Voting Districts Underpopulated, How Should New Orleans Hold Elections?

By KRISTEN CLARKE-AVERY AND M. DAVID GELFAND

Tuesday, Oct. 11, 2005

This is one in a special series of columns on legal issues arising in the aftermath of Hurricane Katrina. - Ed.

Because Louisiana is a "covered" jurisdiction under Section 5 of the Voting Rights Act, canceling of any of these elections, changing the election procedures, or even moving election booth locations, require "preclearance" (preapproval) by the U.S. Attorney General.

Candidates and their constituents have been displaced; polling places have been destroyed or rendered unusable; and certain election districts are significantly under-populated. Moreover, the massive number of voters dispersed throughout Katrina's diaspora will make campaigning nearly impossible (victories will go to the creative). Absentee voting will be a major issue.

How can we address the impact that Hurricane Katrina has had on voting rights and the election process, while still preserving the voice and influence of citizens in the rebuilding and reconstruction process?

Louisiana Could Choose to Postpone Southeastern Federal Elections

Congressional elections are scheduled for Fall 2006. Should the reconstruction process take longer than expected -- leaving districts under-populated or without an adequate absentee voting mechanism -- the state could decide to postpone its federal elections.

A federal statute states that a uniform date shall be set throughout the country for biennial House elections. However, in the 1982 case of Busbee v. Smith, the federal district court for the District of Columbia held that those elections may, under certain circumstances be held at other times - for instance, in the case of "a natural disaster."

Opening up the Absentee Voting Process for Displaced Citizens

With many New Orleans residents now temporarily residing in other states, absentee voting is crucially important.

Voters may want to take advantage of the early in-person voting period, should they have the mobility to go back and forth from their hometown during the rebuilding process, but cannot stay. (Thanks to a June 2005 state law, voters need not give a reason for voting early.)

Under current state absentee-voting requirements, eligible absentees include those who are "temporarily located outside of the territorial limits of one's state or parish during the absentee voting period and election day."

State officials should adopt a broad definition of the "temporarily" period to include those voters who have the intent to resettle in their pre-Katrina hometown but who may be unable to do so for many months, or even years.

State officials should also allow and facilitate voting-via-fax. Louisiana law requires that absentee ballots be received by mail at least 4 days prior to the close of the polls. However, if the voter feels that she will not have enough time to vote by mail, the law also allows voters to receive and cast their ballots by fax.

With potentially very large numbers of fax votes coming in, the Help Louisiana Vote Fund, which sets aside money to help improve the administration of elections, could be tapped to make sure that all Registrar offices are properly equipped with fax machines.

The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) -- which governs voting by soldiers and their families, and overseas citizens -- provides a model for Louisiana's handling of massive numbers of absentee voters.

Using this model, Louisiana and other states could make absentee ballots available during an extended voting period, both on-line and at public locations such as DMV sites, libraries, public hospitals and post offices. As with UOCAVA, liberal voter registration requirements could also be put in place including registration-via-fax. A UOCAVA-type certification that subjects voters to penalties of perjury would address concerns of vote fraud.

Relaxing Voter Identification Requirements

Recently, the Carter-Baker Commission on Federal Election Reform, a bi-partisan group assembled to examine ballot integrity and access issues, adopted a controversial recommendation that all states require voters to present a "REAL ID" card (that is, government-issued identification including a person's full name, date of birth, signature, photograph and Social Security number) at the polls. Louisiana should hold off on poll checks of REAL ID cards. After all, even typical identification requirements may prove difficult to fulfill for displaced New Orleans citizens.

Poorer citizens may lack the financial resources to return to recover personal property, documents and identification cards. And many may never have had drivers' licenses in the first place.

Yet Louisiana is one of the few states requiring voters to present photo identification at the polls: a driver's license, a special ID card or other "generally recognized" photo identification (for instance, a Sam's Club Card is deemed acceptable in some parishes).

In place of photo identification requirements, state officials should accept the presentation of FEMA-issued applications for relief, insurance applications, Red Cross relief documentation or other disaster-related paperwork. Those voters without documentation could instead be permitted to use signatures that could be verified later for accuracy (many states' system) or required to simply take an oath.

Protective Measures Should Remain in Place Unless and Until Voters Express a Clear Intent to Establish Permanent Residency Elsewhere

Displaced citizens should retain voting rights - and the protections of the relaxed legal requirements cited above - unless and until those voters affirmatively indicate their intent to establish a new residency elsewhere.

Submitting a voter registration application elsewhere is the clearest indicator of that intent. But requesting a driver's license or receiving benefits elsewhere is not enough. Even those who intend to return may need to drive and work in the meantime.

Unless they take affirmative step to register to vote elsewhere, absentee voters should not be purged from pre-Katrina voter rolls. (Regardless, such a purge would likely violate the provisions of the National Voter Registration Act.)

Redistricting Is Likely to Affect African-Americans' Political Power

Of seven Congressional districts in the State of Louisiana, the state's single majority African-American district encompasses much of New Orleans. African Americans represent 67 percent of the City's pre-Katrina population.

New Orleans has long been the heart and pulse of African-American political power. Four of the nine African-Americans in the State Senate hail from New Orleans - as do a third of the African-American representatives in the State House. More than half the seats on the New Orleans City Council are held by African Americans.

These demographics could change dramatically. Redistricting may be put off for a while through the use of estimates: During the redistricting of election districts for Dade County after Hurricane Andrew, no one knew for certain how many persons had temporarily moved from the south to the north of the County. Thus, parties to the lawsuit simply stipulated to pre-Hurricane census figures.

But such legal fictions cannot be used forever. Should New Orleanians be excluded by one-sided rebuilding plans or should they ultimately decide to resettle elsewhere, it is likely that the City will have less representation in the state legislature, and it may no longer have a population large enough to constitute a Congressional district.

Finally, the loss of the current Congressional district dominated by New Orleans could mean, in theory, that the state would need to create a majority-African-American district elsewhere in the state (current relocation patterns suggest that Baton Rouge will become the new locus of Black political power).

In sum, redistricting will inevitably be not only a political, but also a racial issue - not only in New Orleans, but also potentially in Baton Rouge, Houston, El Paso, and elsewhere, if displaced and overwhelmingly African-American voters decide to stay where they are now.

Katrina Victims' Right to Vote Must Be Preserved

On September 30, 2005, Mayor Ray Nagin named a 17-member Bring New Orleans Back Commission that will develop a plan for the rebuilding and redevelopment of the city. Although it is unlikely that individual citizens who have been dispersed throughout the United States will have direct input on the shape and structure of the rebuilding process, one can hope that their elected officials will adequately protect their interests.

Should citizens lose the right to cast ballots and choose their representatives, they will also lose any influence over the reconstruction process. For those concerned about participatory democracy, preserving the voting rights of displaced citizens must be a top priority.

And for those who are concerned that the reconstructed New Orleans fairly and adequately represents the interests, influence and contributions of African-Americans, immediate steps must be taken to safeguard and preserve minority voting rights.


Kristen Clarke-Avery is a civil rights attorney based in Washington, D.C. She has handled a number of voting rights cases, redistricting matters and election-related issues in Louisiana and other parts of the country. The views, policies and/or positions expressed in this column are her own. She can be contacted at kclarke@post.harvard.edu. Tragically, M. David Gelfand passed away recently. He was the Ashton Phelps Chair and Professor of Constitutional Law at Tulane Law School. He was also the President of the newly formed From the Lake to the River: The New Orleans Coalition for Legal Aid & Disaster Relief, which will be providing services to New Orleans victims of Hurricane Katrina (wherever they are) and playing a watchdog/oversight role with respect to the federal government's relief funds and efforts. The website for the Coalition can be found at FromtheLaketotheRiver.org.

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