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Friday, October 17, 2014

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule"

The title of this post comes from this paper by Professor Gabriel Chin, the abstract of which states:

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to “preclear” changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution’s Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing – as well as from what little the Court has said – that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

October 17, 2014 in Election Law, Right to Vote | Permalink | Comments (1)

Thursday, October 16, 2014

Does recent survey lend support for claim that voter ID laws stem from racial animus?

Slate.com's Jamelle Bouie explains why he believes support for restrict voter ID laws is more about politics, not race. Bouie argues that partisanship accounts for a recent survey that found Americans were more likely to support voter ID when shown a picture of black person than of a white person; and for another one in which legistators who supported voter ID were more likely to respond to emails from persons with an "Anglo" sounding name than a "Latino" one. Finally, he cites a third study concluding that support for voter ID is "influenced by the intensity of electoral competition." In the end, Republican support for voter ID stems more from a desire to beat Democrats than to discriminate against racial minorities -- or so the argument goes, I suppose. Bouie writes:

Voter ID boosters don’t hold anti-minority animus as much as they want to maximize political advantage. As Judge Richard Posner wrote in a recent dissent against the Wisconsin voter ID law, “There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.”

 

Indeed, this ultra-partisanship helps explain the apparent reaction against minorities in the Delware and Southern California studies. If black Americans are Democratic voters and voter ID opponents, and you’re asked to take a stand on voter ID in the context of black voting, then you might show more support, if you’re a Republican voter. It’s not racial, it’s tribal.

 

But it's hard to say this matters. No, voter ID supporters might not hold racial animus, but they end up in the same place as a racist who does: Supporting laws that restrict the vote and hurt minorities.

October 16, 2014 in Election Law, Right to Vote, Voter ID | Permalink | Comments (1)

Tuesday, October 14, 2014

"How to Predict a Voting Rights Decision"

Professor Rick Hasen has this valuable, if depressing, essay at Slate.com explaining how recent voting rights rulings have led him to this dour realization about the pending Texas voter ID case and the state of the federal judiciary:

I expect it will be resolved to let Texas use its ID law during the upcoming election.

 

My prediction is based on the same thing I used to predict that the trial judge would strike down Texas’ law: the ideology of the judge and the political party of the president nominating the judge.

 

It is sad in 2014 that this is a great predictor of how courts have decided these cases. But at least in the cases of North Carolina and Wisconsin, politics did not always predict Supreme Court justices’ decisions. Two Democrat-appointed justices (Stephen Breyer and Elena Kagan) voted to stop the last-minute expansion of voting rights in North Carolina, and two Republican appointees (Chief Justice John Roberts and Justice Anthony Kennedy) voted to stop the last-minute implementation of voter ID in Wisconsin.

 

Maybe there’s a glimmer of hope in that.

October 14, 2014 in Election Law, Right to Vote, Voter ID | Permalink | Comments (0)

Monday, October 13, 2014

"Republicans go to great lengths to keep some people from the ballot box"

Saturday, October 11, 2014

"What the hell is that? Is it Black Friday?"

...comedian Lewis Black bellows in response to a photo of people waiting in line to vote in this recent ACLU video:

 

October 11, 2014 in Election Law, Right to Vote, Voter ID | Permalink | Comments (0)

Friday, October 10, 2014

Civil rights group alleges Georgia officials not processing voter registration cards in order to depress turnout

Wednesday, October 8, 2014

About that increase in voter registration in Ferguson, MO since the killing of Michael Brown...

As it turns out, not so much. MSNBC's Zachary Roth reports:

Local election officials said last week that 3,287 people had registered to vote in Ferguson since the Aug. 9 police shooting of Michael Brown—a massive spike in a city with a population of 21,000.

 

But Tuesday, the board backtracked, saying that in fact only 128 people had registered. 

 

[...]

 

Heard Days told msnbc that the 3,287 figure in fact showed how many already-registered voters had had a change made to their registration information—for instance, because they moved within the county. Board officials wrongly thought the number referred to newly registered voters.

Amends my previous post: Killing of Michael Brown "could spark long-lasting political change."

October 8, 2014 in Right to Vote | Permalink | Comments (0)

Monday, October 6, 2014

"The Problem of Voter Fraud"

The title of this post comes from this recent paper by Professor Michael Gilbert, the abstract of which states:

Voter ID laws have provoked a fierce controversy in politics and public law. Supporters claim that such laws deter fraudulent votes and protect the integrity of American elections. Opponents, on the other hand, argue that such laws, like poll taxes and literacy tests before them, intentionally depress turnout by lawful voters. A vast literature, including legal scholarship and opinions of the Supreme Court, accept these two narratives. But these narratives are wrong, or at least incomplete. Voter ID laws can have many effects, including surprising ones like this: they can exacerbate fraud. To illustrate, suppose that without a voter ID law candidates A and B would receive 13 and 10 lawful votes, respectively, and B would receive two fraudulent votes. Candidate A wins non-fraudulently, 13 to 12. Now suppose that with a voter ID law, candidates A and B would get nine and nine lawful votes, respectively (less than before because of depressed turnout), and B would get one fraudulent vote (less than before because of fraud deterrence). Candidate B wins fraudulently, 10-9. The conditions necessary for ID laws to have this effect are simple and may be common. The paper captures this risk with a formula, the Election Integrity Ratio, which judges and scholars could use to determine when ID laws protect elections — and when they cause the very problem they purport to solve. The paper has implications for constitutional law and public policy. It also has broad reach. Any law that deters fraudulent votes, depresses lawful votes, or does both — citizenship and residency requirements, for example, which are used throughout the United States and around the world — are subject to the analysis herein.

October 6, 2014 in Election Law, Right to Vote, Voter ID | Permalink | Comments (0)

Friday, October 3, 2014

Killing of Michael Brown "could spark long-lasting political change."

The voter registration drive in Ferguson is picking up and paying off. More than 3,000 Ferguson residents have registered to vote. Ferguson's total population only amounts to about 21,000 people, the majority of which are black and tend to vote less, resulting in an awfully white city council. But the killing of Michael Brown could change this. As MSNBC's Zachary Roth observes:  

Two out of three Ferguson residents are black, but five of the city’s six city council members, as well as its mayor, are white—a disparity that has received widespread attention since the unrest began.

 

[...]

 

Data suggests turnout among Ferguson’s black residents is far lower than among whites. There are several reasons for that: Blacks tend to be newer arrivals in Ferguson, and more transient, than whites. And Ferguson’s elections are held in April, which almost always correlates with lower black turnout. 

 

Less than two weeks after Brown’s death, Antonio French, a local alderman, set up an office in Ferguson to serve as a headquarters for a voter registration and mobilization effort. Other activists have placed registration tables at the site of Brown’s death, and outside the convenience store on Florissant Avenue where he is said to have stolen cigars not long before being killed.

 

Not everyone is happy about the drive for increased participation. Matt Wills, the executive director of the Missouri Republican Party, said setting up a registration booth at the site of Brown’s death was “fanning the political flames.”

Related posts:

October 3, 2014 in Election Law, Excessive Force, Right to Vote | Permalink | Comments (0)

Cartoon: "Supreme Court Limits Voting Access In Ohio Case"

Jeff Danziger at The National Memo:

Supreme-court-voting-access-1024x686

October 3, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Friday, September 12, 2014

"Protecting Political Participation Through the Voter Qualifications Clause of Article I"

The title of this post comes from this forthcoming article by Professor Franita Tolson, the abstract of which states:

The Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution makes federal voting rights dependent upon participation in state elections. This Article argues that Article I incorporates both state constitutional law governing the right to vote and the democratic norms that existed within the states at the founding as the basis for determining the qualifications of federal electors. The democratic norms governing political participation can be traced to founding-era state constitutions that preserved the fundamental right of citizens to alter or abolish their governments at will, which was similar to the right of revolution exercised by the colonists against the British during the Revolutionary War. It is this understanding of the right to vote in federal elections, parasitic upon the robustly democratic notion of participation that existed at the state level and enshrined in state constitutional alter or abolish provisions, that the framers of the Constitution endorsed in the Voter Qualifications Clause of Article I. Contrary to this provision, the caselaw has divorced state and federal elections, resulting in excessive judicial deference to state regulations that govern the right to vote. As this Article shows, the Voter Qualifications Clause requires that states aggressively safeguard political participation in order to protect federal voting rights, which suggests that courts should apply a higher level of scrutiny in assessing the constitutionality of state election laws.

September 12, 2014 in Right to Vote | Permalink | Comments (1)

Thursday, September 11, 2014

Legal dispute over N.C. voting laws continues in federal court on Sept. 25

On September 25, the U.S. 4th Circuit Court of Appeals will begin oral arguments in the North Carolina voting rights case* over the restrictions the Republican-controlled legislature passed in 2013. As The Raleigh News & Observer's Anne Blythe reports:

The challengers contend that the 2013 election law overhaul discriminates against African-Americans, Latinos and voters younger than 25. They have asked the court to block provisions that end same-day registration, curb the number of days on which people can vote early, prohibit people from casting ballots out of their assigned precincts and end a popular teen preregistration program.

 

Republican leaders who shepherded the changes through the General Assembly to the desk of Gov. Pat McCrory, who signed the 2013 bill into law, argue that they are trying to ward off the potential for voter fraud, though few cases have been brought forward.

Last month, a federal judge rejected the appellant's request for a preliminary injunction against these laws, which, if approved, would have left the old laws in place through the November 2014 midterm elections. This month, the Fourth Circuit again rejected that request (here) . But, it agreed to expite their appeal.

Also, in this recent reportDemocracy North Carolina found in the last election that the new voting laws disenfranchised 454 North Carolinians whose votes would've counted before. The group writes:
 
Voters denied a chance to have their voices heard include a veteran returning from Afghanistan whose registration was incorrectly terminated while he was away; a first-time voter who registered at the DMV, but that registration didn’t reach the local board of elections; a precinct judge assigned to a precinct other than her own who couldn’t leave to vote in her home precinct; a disabled senior who was driven to a friend’s polling place on Election Day; a nurse who temporarily registered her car in a nearby county while working at its hospital for nine months; a college student who registered during a voter drive but her application was not recorded; and a new couple in town who mailed in their registration but it did not reach the county board of elections before the registration deadline.

September 11, 2014 in Election Law, Right to Vote | Permalink | Comments (1)

Tuesday, September 9, 2014

Report: Strict voter ID laws may disenfranchise many transgender citizens

The Williams Institute for the study of sexual orientation and gender identity law and policy at the UCLA School of Law issued this report finding that strict photo ID laws could greatly affect the ability of transgender citizens to cast ballots in upcoming elections. It concludes:

Voter ID laws create a unique barrier for transgender people who would otherwise be eligible to vote. Many transgender people who have transitioned do not have identification that accurately reflects their correct gender. In the November 2014 election, strict photo ID laws may create substantial barriers to voting and possible disenfranchisement for over 24,000 transgender people in nine states. Transgender people of color, youth, students, people with low incomes, and people with disabilities are likely overrepresented in that group. In order for these 24,000 voting-eligible transgender people to obtain the updated IDs required to vote in the November 2014 general election, they must comply with the requirements for updating their state-issued or federally-issued IDs. These requirements vary widely by state or federal agency and can be difficult and costly to meet. Voter ID laws, therefore, will create a unique barrier to voting in the November 2014 general election for a substantial number of transgender citizens.

September 9, 2014 in Right to Vote, Voter ID | Permalink | Comments (0)

"Ballots for Bullets? Disabled Veterans and the Right to Vote"

The title of this post comes from the recent paper by Rabia Belt, the abstract of which states:

Over 100,000 veterans lived in a government-funded home after the Civil War. Despite sacrificing their bodies for the preservation of the nation, these veterans lost the right to vote. This disfranchisement challenges the conventional wisdom that disabled veterans occupied a privileged position in society, politics, and law. Instead, their disability status trumped their military history, and they became part of a set of dependent, disabled people rendered placeless and vote-less by state law.

September 9, 2014 in Right to Vote | Permalink | Comments (0)

Sunday, August 24, 2014

"Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act"

The title of this post comes from this upcoming paper, the abstract of which states:

In Shelby County v. Holder, the Supreme Court rendered one of the most potent antidiscrimination provisions of American law a dead letter: the preclearance regime of the Voting Rights Act of 1965 (VRA). Shelby County held that the formula determining which jurisdictions are required to obtain federal approval for voting law changes was outdated and offensive to states’ rights. The Court ignored ample evidence of discrimination in the covered jurisdictions, focusing instead on improvements in voter turnout and registration. We present new empirical evidence that the proposal and passage of restrictive voting laws, such as photo identification requirements and reductions of early voting opportunities, are associated with racial factors such as larger African American populations and increases in minority voter turnout. These results are consistent with the interpretation that restrictive voting laws have been pursued in order to suppress Democratic-leaning minority voters, and they are suggestive that racial discrimination is a contributing factor to this type of legislation. The increases in registration and turnout that Shelby County hailed as evidence that preclearance is no longer needed are actually risk factors for potentially discriminatory voting laws. We suggest opportunities for countering discrimination after Shelby County. The evidence we present is relevant to litigation under remaining provisions of the VRA, especially the prohibition on voting laws with a discriminatory effect under Section 2. Finally, we suggest that our findings should inform the Congressional response to Shelby County: a new coverage formula should include the racial characteristics we identify as risk factors.

August 24, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Sunday, July 13, 2014

Charlotte Observer editorial calls on federal judge to enjoin enforcement of North Carolina's new election laws

In the wake of  SCOTUS's decision last summer in Shelby County, the North Carolina legislature rushed to pass a series of changes to the state's election laws. In addition to the controversial voter ID Voting countsprovision, the changes would limit early voting and eliminate same-day voter registration and the availability of out-of-precinct provisional ballots. These changes prompted challenges by civil and voting rights groups as well as the DOJ, who claim the laws disproportionately affect African Americans, the eldely and college students.

Last week, a federal judge heard arguments on whether to enjoin the state from enforcing the changes pending litigation scheduled for July 2015. 

The Charlotte Observer strongly supports such an injunction. Indeed, in yesterday's editorial, it claims "the judge should block [the changes] until the courts resolve the matter next summer." It states:

The judge should suspend implementation of these new laws. They are ill-advised and unnecessary. Some have already caused confusion and wasted taxpayer dollars.

 

We noted that last week that lawmakers’ decision to end preregistration of teens to vote was nonsensical. It caused so much confusion about when 17 year olds who would turn 18 could register that state elections supervisor Kim Strach decreed the state will begin offering voter registration services to all 17-year-olds regardless of when they turned 18.

 

Suspension of the voting changes would reinstate teen preregistration, as well as same-day voter registration, out-of-precinct provisional voting, and early voting over 17 days as opposed to the 10 days set in the 2013 law. County boards of election also would still be allowed to keep polls open an extra hour. It would also forestall the preparations elections officials are making for the implementation of a state-approved voter ID. That law doesn’t go into effect until 2016, but poll workers are already asking about IDs which has confused some voters.

July 13, 2014 in Election Law, Right to Vote, Voter ID | Permalink | Comments (0)

Monday, July 7, 2014

'On Democracy's Doorstep: The Inside Story of How the Supreme Court Brought "One Person, One Vote" to the United States'

The title of this post comes from this recently released book by J. Douglas Smith, which, according to David Garrow's review in WaPo, is an "excellent and definitive book." According to Garrow:

Remembrances of the 1964 Civil Rights Act often celebrate the crucial roles that Republican legislators Everett Dirksen and William McCulloch played in that bill’s passage, but at the same time that Johnson was signing that landmark statute into law, Dirksen and McCulloch were championing a nationwide effort to enact a constitutional amendment to override the Supreme Court’s redistricting rulings. That crusade, which won widespread corporate backing, has been almost entirely forgotten, and Smith’s impressive research recaptures an otherwise unremembered chapter in U.S. history. He rightly notes that “Dirksen appeared not to fully comprehend that the Supreme Court’s reapportionment decisions had empowered Republican voters in the suburbs every bit as much as they had Democrats in the shrinking cities.”

 

“On Democracy’s Doorstep” recounts a triumphant story of constitutional reform that dramatically advanced the promise of democracy, yet Smith correctly concludes by emphasizing how the marked escalation of partisan gerrymandering in recent decades, and the Supreme Court’s refusal to confront it, has greatly dulled the promise that “one person, one vote” offered in June 1964.

Here's the summary of the book:

As chief justice of the U.S. Supreme Court, Earl Warren is most often remembered for landmark rulings in favor of desegregation and the rights of the accused. But Warren himself identified a lesser known group of cases—Baker v. Carr, Reynolds v. Sims, and their companions—as his most important work. J. Douglas Smith’s On Democracy’s Doorstep masterfully recounts the tumultuous and often overlooked events that established the principle of “one person, one vote” in the United States.

 

Before the Warren Court acted, American democracy was in poor order. As citizens migrated to urban areas, legislative boundaries remained the same, giving rural lawmakers from sparsely populated districts disproportionate political power—a power they often used on behalf of influential business interests. Smith shows how activists ranging from city boosters in Tennessee to the League of Women Voters worked to end malapportionment, incurring the wrath of chambers of commerce and southern segregationists as they did so. Despite a conspiracy of legislative inaction and a 1946 Supreme Court decision that instructed the judiciary not to enter the “political thicket,” advocates did not lose hope. As Smith shows, they skillfully used the Fourteenth Amendment’s Equal Protection Clause to argue for radical judicial intervention. Smith vividly depicts the unfolding drama as Attorney General Robert F. Kennedy pressed for change, Solicitor General Archibald Cox cautiously held back, young clerks pushed the justices toward ever-bolder reform, and the powerful Senate Minority Leader Everett Dirksen obsessively sought to reverse the judicial revolution that had upended state governments from California to Virginia.

 

Today, following the Court’s recent controversial decisions on voting rights and campaign finance, the battles described in On Democracy’s Doorstep have increasing relevance. With erudition and verve, Smith illuminates this neglected episode of American political history and confronts its profound consequences.

July 7, 2014 in Right to Vote | Permalink | Comments (1)

'Dispatches From Freedom Summer'

Beginning tomorrow, July 8, 2014, ProPublica will run a series of reflections on the effort to register African Americans to vote in Mississippi during the summer of 1964. According to ProPublica's announcement: 

Fifty years ago this summer, hundreds of black and white volunteers converged on Mississippi in an effort to, as they put it, make Mississippi a part of America. What became known as Freedom Summer spanned 10 bloody weeks, helped transform the South and aided in the passage of the Voting Rights Act of 1965 that helped ensure black Southerners their constitutional right to vote.

 

We are assembling a range of reflections on that time in Mississippi, to be called “Dispatches From Freedom Summer” and to be published over the course of the next two months. We plan to hear from the widow of a slain civil rights worker, a reporter whose work led to the prosecution of several former Klan members and a onetime federal judge who as a young lawyer was involved in the often raw racial politics of the time. The pieces — on the impact of Freedom Summer, both then and now — will be published by ProPublica and, we hope, by other news outlets across the country. “Dispatches” will start this Tuesday with a piece by ProPublica’s Nikole Hannah-Jones, who last month visited, for the first time, her father’s birthplace, Greenwood, Miss., a kind of ground zero of Freedom Summer.

July 7, 2014 in Right to Vote | Permalink | Comments (0)

Wednesday, June 11, 2014

'Racial or Partisan Gerrymandering: Supreme Court to Decide'

The National Conference of State Legislatures Blog's Lisa Soronen reported yesterday on two notable voting rights cases scheduled for review by SCOTUS later this term. The title of this post comes from that post, which states:

In many cases, judges disagree about how to apply the law. In some cases, judges disagree about the facts of the case or, more specifically, about what facts are important and what conclusions to draw from the facts. All this and more is what the federal district court majority and dissenters disagree about in two redistricting cases the U.S. Supreme Court will review.  

 

In Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, the Supreme Court will decide whether Alabama’s redistricting plan violates Section 2 of the Voting Rights Act and the 14th Amendment’s Equal Protection Clause by intentionally packing black voters into districts already containing a majority of black voters. 

 

The Alabama Legislature’s 2010 redistricting plan maintains the number of House and Senate majority-black districts. But because most of the majority-black districts were underpopulated, the Legislature “redrew the districts by shifting more black voters into the majority-black districts to maintain the same relative percentages of black voters in those districts.” Black voters allege that packing them into super-majority districts limits their potential influence in other jurisdictions.

 

Section 2 of the Voting Rights Act prohibits vote dilution, where the legislature enacts a voting scheme that intentionally minimizes or cancels out the voting potential of racial or ethnic minorities. The 14th Amendment’s Equal Protection Clause prohibits gerrymandering, or separating voters into districts based on race.

 

Two district court judges rejected the argument that vote dilution or racial gerrymandering occurred in this case, ruling that race wasn’t the predominate motiving factor in creating the districts. Instead, the judges ruled, the Legislature “maintained the cores of existing districts, made districts more compact where possible, kept almost all of the incumbents within their districts, and respected communities of interest where possible.” 

 

A dissenting judge disagreed. Judge Thompson opined that the drafters set a quota that they would not decrease the percent of black voters in any district. To achieve these quotas, the Legislature “eliminated existing districts, created conflicts between incumbents, ignored legislators’ preferences, and split of huge volume of precincts.”

 

Redistricting in compliance with the Voting Rights Act and the U.S. Constitution is a perennial issue for state legislatures.  

CRL&P related posts:

June 11, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Friday, May 9, 2014

"Race as a Tool in the Struggle for Political Mastery: North Carolina's 'Redemption' Revisited 1870-1905 and 2011-2013"

The title of this post comes from this intriguing paper by Professor Michael Kent Curtis, the abstract of which states:

The article discusses in depth and in historical perspective the use of racial tools to achieve political dominance in North Carolina’s 2011 redistricting. 

Prominent among these 2011 tools has been the use of racial quotas purportedly justified by theVoting Rights Act to add more black voters to districts that have been quite safe for black candidates and to subtract more white and other voters from the purported voting rightsdistricts. These devices serve to disrupt biracial coalitions by packing additional African Americans in selected super-safe districts and removing them from others, undermining multi-racial coalitions and increasing racial polarization. 

The effect, of course, is to deprive blacks of many of their white allies. In the past in North Carolina we have had a black Speaker of the House and black committee chairs. Effective disruption of a biracial coalition has provided a few more black representatives and many fewer white ones — but has helped to leave black representatives as a larger part of a more powerless party in the legislature. This emphasis on disrupting a bi or multiracial coalition and to portray a “black party” and a “white party” is a new chapter in an old story. That earlier history is explored in the article. 

While quotas are increasingly disfavored by the current Court, here the legislature (purporting to follow the law) had two quotas — more 50% black voting age population districts and black representatives in the legislature in proportion to the overall black voting age population of the state. While many justices on the Court have expressed Fourteenth Amendment concerns about entrenching racial districting, the dual quotas have done both. As a means of containing expanding racial districting and its quotas, the article suggests a strategy and tests for containment — at least limiting creation of new districts for no good purpose and protecting multiracial coalitions from decimation to meet dual quotas.

The case discussed here is currently before the North Carolina Supreme Court. If that decision comes out before publication, it can easily be revised to take account of the decision, which seems likely to follow the decision of the trial court which is criticized.

May 9, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Tuesday, April 22, 2014

Shelby County attorney sets sights on Texas apportionment scheme

Texas Observer reports that the Project for Fair Representation has a new project--diluting minority representative power in Texas's legislature. The one-man group represented Shelby County, Alabama in its successful challenge to the Voting Rights Act's preclearance requirement, which the Supreme Court struck down last year. Now, it aims to amend the way Texas apportions its representative districts. As the Observer's Christopher Hooks reports: 

The conservative group’s legal challenge objects to the fact that that number includes many people who can’t vote, including children, convicted felons and, most important, non-citizens—both undocumented migrants and permanent residents who are foreign nationals. The suit argues that counting people who aren’t eligible voters is a violation of the Fourteenth Amendment. The Project on Fair Representation wants the Legislature to attempt to draw senate districts Texasthat have an identical number of eligible voters, or citizen voting age population (CVAP.) Under that method, each senate district would be drawn to have about 502,000 eligible voters.

 

That might sound like a relatively innocuous change, but it would dramatically alter the political landscape in Texas. Redrawing districts under the new rules might decrease the political polarization in the state Senate—creating more ideologically-similar districts—but at the same time it would dramatically lessen the voice non-white voters have in the political process. Those who are too young to vote, or legally unable to vote, wouldn’t be counted as people when it comes to distributing representation in the state Senate. And urban areas like Houston, which have a large number of non-voting residents, would be effectively disadvantaged in the Senate.

 

The state senate districts with the highest number of non-voters are represented by state Sen. Sylvia Garcia (D-Houston) state Sen. Rodney Ellis (D-Houston) and state Sen. Eddie Lucio (D-Brownsville), all of whom currently represent both a large number of children and non-citizens. They’re also among the most progressive members of the Senate.

 

If the conservative group’s plan were adopted today, all three would have their districts redrawn to include more eligible voters. That would mean, especially in Houston, likely pulling from the region’s pool of Anglo voters, according to Li. And those senators would also represent more people than others. Poor and young residents of the district would effectively have their voices in the Senate diluted, as their elected senator found themselves with many more constituents than before.

 

Meanwhile, the senators who represent districts with fewest non-voters would include state Sen. Bob Nichols (R-Jacksonville) and state Sen. Craig Estes (R-Wichita Falls) who have whiter electorates. Their districts might not change much.

 

Li says the conservative group’s effort, if successful, might make certain Democratic-leaning districts more politically competitive. But asked specifically about Ellis’ and Garcia’s districts—the biggest outliers—he said the changes might be less about political affiliation than which voices are represented. “I don’t think the risk is that it becomes a Republican district per se,” he said. “But there clearly is a political benefit here, and the benefit doesn’t favor African-Americans and Hispanics.”

 

Moreover, he says, such a plan would be difficult to implement. The true number of voting eligible residents in a given area would be “very difficult to tabulate.” The Census doesn’t ask about citizenship status. And to exclude voting-age felons, you’d need to ascertain and track their status. “It’s really hard to do this on a state level,” he says, “especially in a state that’s as complicated as Texas.”

CRL&P related posts:

April 22, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Thursday, April 10, 2014

"(Mis)Trusting States to Run Elections"

The title of this post comes from this forthcoming paper by Professor Joshua A. Douglas, the abstract of which states:

Court has done so not explicitly but through two judicial maneuvers, one substantive and the other procedural, that place tremendous trust in states: lowering the bar for the state interest prong of the constitutional analysis, and forbidding facial challenges to state rules on election administration. The Court has credited any state assertion of “election integrity,” even if that is not the actual impetus for the law under review. It also will reject a facial challenge to a state voting rule, thereby leaving the law in place until a plaintiff has gathered actual evidence of the law’s impact on particular voters. The Court has not treated Congress the same, demonstrating its willingness to invalidate a federal voting rule on its face even when Congress has asserted a more detailed rationale for the law. This Article uncovers this approach to constitutional challenges to voting regulations. It also explains why this current jurisprudence is both wrong and dangerous. It is wrong because the U.S. Constitution gives the federal government significant scope to promulgate election regulations, and states are subordinate to Congress under our constitutional structure. It is dangerous because the current deferential approach emboldens states to pass partisan-based laws with an eye toward affecting elections, and all a state needs to say to justify a new law is that it is seeking to ensure “election integrity.” The Court should reverse this current jurisprudence by requiring states to provide a more detailed justification for an election law and by allowing broader use of facial challenges to invalidate state voting laws, when necessary, before they are implemented. Voting, as a fundamental right, deserves robust protection from the courts. Scrutinizing state election laws more closely will help to achieve this worthy goal.

April 10, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Wednesday, April 9, 2014

"The Future of Voting Rights in Indian Country Following Shelby County and Inter Tribal Council of Arizona"

The title of this post comes from this upcoming article by Professor Jeanette Wolfley, the abstract of which states:

This past term the United States Supreme Court issued two decisions involving voting rights – Shelby County v. Holder and Arizona v. Inter Tribal Council of Arizona. The Court in Shelby County struck down Section 4 of the Voting Rights Act, and Inter Tribal Council held the National Voter Registration Act preempted Arizona’s election requirements. Scholars’ and practitioners’ focus on Shelby County has not considered the impact on Indian voters or reservation residents. This Article seeks to fill the gap by examining the Shelby County and Inter Tribal Council decisions, and strives to provide some insight and effective responses with regard to impacts on Native American voters across Indian country. It provides a comprehensive discussion of voting measures, actions, cooperative agreements and laws that should be considered and implemented by Indian tribes, states, the federal government, and Indian voters to address the void left by the two decisions.

April 9, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Friday, April 4, 2014

A brief summary of the development of campaign finance laws

Today, WaPo reporter Jaime Fuller provides this intriguing historical summary of political spending and attempts by federal and state governments to regulate campaign finance. She FreedmenVotingInNewOrleans1867begins by recounting the early efforts of a young George Washington to persuade voters by the then-common practice of treating--whereby candidates provided banquets of food and liquor at the polling place; she ends, of course, with the Supreme Court's decision earlier this week in McCutcheon v. FEC

After recounting Washington's electioneering efforts in 1757, Fuller jumps to the campaign finance law passed by Congress in 1867 making it illegal to solicit donations from naval yard workers. However, the intervening years were not bereft of efforts to curb seemingly excessive spending in campaigns.

Colonial assemblies and state goverments routinely attempted to reduce the influence of money in politics. As Chilton Williamson documents in his book American Suffrage From Property to Democracy, 1760- 1860, "Colonial assemblies tried to curb these electoral abuses by a spate of laws...against the treating of electors[.]" Richard Dinkin notes, for example, the Maryland colonial assembly's attempt to limit such practices, citing a 1768 election law:

[T]hat  on any petition for treating, this house will not take into consideration, or regard the greatness or smallness of any treat, but will in all cases, in which any person or persons,...directly or indirectly give, present, or allow to any person having a voice or vote in such election, any money, meat, drink, entertainment or provision, or make any present, gift reward, or entertainment,...whatsoever, in order to be elected, or for being elected, will declare the election of such person voice.

Additionally, the move from public to private voting by the adoption of the Australian ballot--or secret ballot--was often viewed as an effort to curtail campaign spending. In fact, the eventual popularization of the Australian ballot in the U.S. is commonly attributed to Henry George's 1883 article titled Money in Elections. Notably, he writes:

To begin with what I conceive would be the greatest single reform. By adopting the Australian plan of voting, now for some years in successful operation in England, we could abolish at one stroke all the expense of printing and distributing tickets, and all the expense and demoralization consequent on the employment of “workers,” and very much lessen the importance of party nominations and party machinery. Under that plan the ballots are printed at public expense, and contain names of all persons duly registered as candidates. When the voter approaches the poll he is handed one of these ballots. He enters a compartment, where a pencil or pen and ink are provided, and, concealed from observation, strikes off the names of those he does not which to vote for, or as in England, indicates by a mark those he prefers, and then folding up the ballot, presents it… [T]he corruption of primary politics, and the practice of selling votes in nominating convents, would be destroyed, and the practice of blackmailing candidates by the so-called indorsement of political clubs whose only object is to make money, would be destroyed…[T]he practice of buying votes, and that of coercing voters by error of discharge from employment, would be in large part, if not altogether, broken up by the difficulty of telling how a man voted. There would be no putting a ticket in a man’s hand and keeping an eye on it until deposited.

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April 4, 2014 in Election Law, First Amendment, Freedom of Speech, Right to Vote | Permalink | Comments (0)

Thursday, March 13, 2014

"Responding to Shelby County: A Grand Election Bargain"

The title of this post comes from this recent paper by Professor Daniel Tokaji, the abstract of which states:

The immediate reaction to the Supreme Court’s decision in Shelby County v. Holder was predictably fast, furious, and fissured. Some lauded the decision as a long overdue recognition that things really have changed in the South since the bad old days of mass disenfranchisement, so effectively demolished by the Voting Rights Act of 1965 (VRA). Others lamented the Court’s unceremonious disposal of the civil rights movement’s “crown jewel.” While there is some truth in both perspectives, this article focuses on what both sides have largely missed. 

The article argues that Shelby County provides an opportunity for Congress to take constructive action to protect the vote for all eligible citizens. It proposes a Grand Election Bargain: federal legislation that would expand the opportunities for voter registration (a priority for Democrats) while requiring voter identification (a priority for Republicans) in federal elections. The approach suggested here is a necessary complement to the race-based remedies available under current law, one that would expand the right to vote more generally. It is a proposal for a Voting Rights Act that will address the problems of the current century rather than those of the last century. 

Despite the improvements over the years, significant gaps in registration and participation remain for some demographic groups – especially Latinos, Asian Americans, people of limited education and income, people with disabilities, and young people. Liberalized voter registration rules, particularly same-day registration can help include some of those most likely to be left out. The federal registration and identification rules proposed here would preempt contrary state laws in federal elections. This lies squarely within Congress’ power under the Elections Clause, as clarified by the Court’s decision in Arizona v. Inter Tribal Council of Arizona. 

Part I of the article briefly describes what Shelby County did, setting the stage for discussion of the Voting Rights Act’s actual and perceived effects on election administration. Part II assesses what the preclearance regime was doing before Shelby County, showing that Section 5 was mostly used to stop vote dilution, but did relatively little to stop the new vote denial. Part III examines the evidence regarding who votes and who doesn’t, as well as the causes for low registration and participation among some groups. Part IV proposes a Grand Election Bargain that would expand voter registration and voter identification in federal elections, providing consistent national rules that would trump contrary state and local laws, while moving us closer to the ideal of including all eligible voters in the electorate.

March 13, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Saturday, March 1, 2014

Voting rights activists hope courts will impose preclearance under VRA on five previously covered states

ProPublica has this excellent overview of ongoing litigation in five states with newly minted voting laws. Each of these states had been subject to section 4 of the Voting Rights Act (VRA) requiring government approval of all new voting measures--on account of the extensive history of racial discrimination against minority voters there. But, SCOTUS overturned that provision in Shelby Co. v. Holder.  Now, voting rights activists are hoping courts will impose preclearance on those states for alleged violations of the 14th or 15th Amendments as provided for under the VRA's "bail-in" provision. As ProPublica's Kara Brandeisky reports:

Before the ruling, states, counties and other jurisdictions that were subject to preclearance had to get every single voting change approved – whether they wanted to require a photo ID to vote, change voting hours on Election Day or move even a single polling place.

 

Under “bail-in,” the court can tailor oversight to the situation. A state that enacts an unfair redistricting map, for example, may only need to submit its next map for federal approval.

 

To prevail in court, plaintiffs must prove a jurisdiction intentionally crafted laws or rules to discriminate against minorities. Although that’s not an easy standard to meet, it’s been done before: In the nearly 50 years before Shelby County v. Holder, courts imposed federal oversight requirements at least 18 times after finding that minority rights had been violated.

 

So far, the Justice Department has joined two lawsuits against Texas and has launched its own case against North Carolina. Following is a rundown on all the lawsuits, and an update on the effort in Congress to amend the Voting Rights Act after last year’s court ruling.

Ten such challenges are onging in  five states--Alaska, Louisiana, Montana, North Carolina, and Texas.

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March 1, 2014 in Election Law, Right to Vote, Voter ID | Permalink | Comments (0)

Tuesday, February 18, 2014

Congressional Authority to Protect Voting Rights after Shelby County and Arizona Inter Tribal

The title of this post comes from this fascinating essay by Professor Franita Tolson arguing that SCOTUS has understated Congress's power to regulate voter qualifications. Here's the abstract:

This Essay, written for the 2014 AALS program on "The Right to Vote: From Reynolds v. Sims to Shelby County, and Beyond," attacks the U.S. Supreme Court's narrow view of congressional authority to regulate voter qualifications adopted in Shelby County v. Holder and Arizona v. Inter Tribal Council, and argues that Congress has significant authority over voter qualifications under Article I, section 5, which allows it to judge the elections of its members. Although Congress exercises its authority under this provision after the election has taken place, it remains a source of authority that the Court should have considered in its attempt to craft competing paradigms of state and congressional power over elections in these decisions. By examining election contests from the 47th Congress, the argument herein sheds light on the scope of congressional authority over elections by analyzing Congress’s willingness to intervene in state level disputes over congressional seats. A review of the historical record reveals that the House of Representatives often overturned elections in which state or federal law was not complied with in determining the winner, even in disputes that dealt primarily with voter qualifications. Both Shelby County and Arizona Inter Tribal tell a woefully incomplete story about congressional authority over elections, ignoring that the House’s authority to resolve election contests under state and federal law can be just as powerful as the state’s authority to determine the qualifications of electors ex ante.

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February 18, 2014 in Election Law, Right to Vote | Permalink | Comments (0)

Thursday, January 16, 2014

Shelby County's impact on voting rights policy will likely be 'deeply destabilizing,' argue Profs. Charles and Fuentes-Rohwer

In State's Rights, Last Rites, and Voting Rights, Professors Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer examine the likely consequences of the Supreme Court's decision in Shelby County v. Holder striking down section 5 of the Voting Rights Act (VRA). Here's the abstract:

There are two ways to read the Court's decision in Shelby County, as a minimalist decision and as a decision that has undermined the basic infrastructure of voting rights policy, law, and jurisprudence. In this Essay, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is the problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward.

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January 16, 2014 in Election Law, Right to Vote | Permalink | Comments (1)

Wednesday, January 15, 2014

Plaintiffs in voting rights lawsuits will have procedurally and substantively less protection under § 2 of VRA, writes Professor Stephanopoulos

In The South After Shelby County, Professor Nicholas Stephanopoulos examines the possible effects on voting rights litigation of the Supreme Court's decision in  Shelby County v. Holder striking down section 5 of the Voting Rights Act (VRA). According to Stephanopoulos, voting rights litigation will proceed under section 2 of the VRA, which provides fewer procedural and substantive protections than section 5. Therefore, suggests Stephanopoulos, voters could be exposed to greater restrictions on the right to vote. Here's the abstract:

In Shelby County v. Holder, the Supreme Court dismantled one of the two pillars of the Voting Rights Act: Section 5, which had barred southern jurisdictions from changing their election laws without receiving prior federal approval. But the Court left standing the VRA’s other pillar: Section 2, which prohibits racial discrimination in voting throughout the country. The burning question in the wake of Shelby County is what will happen to minority representation in the South now that Section 5 has been struck down but Section 2 lives on. This Article is the first to address this vital issue.

The Article explores the Section 2 – Section 5 gap with respect to both the procedure and the substance of voting rights litigation. Procedurally, the provisions differ in their allocation of the burden of proof, their default before a decision on the merits is reached, and their proceedings’ cost. These differences mean that numerous policies that previously would have been blocked now will go into effect. In the first substantive area to which the VRA applies, vote dilution, the provisions diverge as well. Section 2 does not extend to bizarrely shaped districts or districts whose minority populations are overly heterogeneous or below 50% in size. In contrast, Section 5 applies to all of these district types. According to my empirical analysis, more than one-third of all formerly protected districts in the South now may be eliminated with legal impunity. In the other substantive area covered by the VRA, vote denial, the provisions again vary in their scope. A mere statistical disparity between minorities and whites does not violate Section 2, but it typically does suffice for preclearance to be denied. The rash of franchise restrictions enacted by southern states in the months since Shelby County shows how much this distinction matters.

The Article also considers some of the ways in which the Section 2 – Section 5 gap could be closed. A new coverage formula could be adopted, thus restoring the prior regime. The VRA’s “bail in” provision could be amended to make it easier to subject jurisdictions to preclearance through litigation. Or Section 2 could be revised so that it resembles the stricken Section 5 more closely. Unfortunately, all of these steps face serious legal and political obstacles. A divided Congress is unlikely to pass legislation touching on sensitive issues of race and political power. Likewise, the Court may be reluctant to allow Shelby County to be circumvented. The Section 2 – Section 5 gap thus will probably persist for the foreseeable future.

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January 15, 2014 in Election Law, Right to Vote, Voter ID | Permalink | Comments (0)

Saturday, December 21, 2013

Brennan Center details best practices for reforming voting system

Last week, the Brennan Center for Justice released its new report: How to Fix the Voting System. The report is adapted from testimony the Center presented to the Presidential Commission on Election Administration--established to address the inefficiencies in voting during the 2012 elections--concerning best practices for reforming the voting system. According the Introduction: 

What follows are practical, evidence- and research-based best practices regarding four areas of reform — each of which will improve election administration and the voting experience: 1) Modernizing voter registration; 2) Expanding early voting; 3) Improving management of polling place resources; and 4) Improving the simplicity and usability of ballots and voting machines, and publishing data on machine performance. 

The full report is available here.

December 21, 2013 in Election Law, Right to Vote | Permalink | Comments (0)

Tuesday, December 17, 2013

Responses to civil rights problems: universalistic, particularistic, or both?

In his upcoming Universalism and Civil Rights (with Notes on Voting Rights after Shelby), Professor Samuel R. Bagenstos claims that universalistic responses to civil rights problems--those not protecting specific groups against discrimination--are insufficient by themselves to address those problems. The better approach is to employ "a highly context-specific analysis," which, he argues, supports accounting for race discrimination in voting rights protections. Here's the abstract:

After the Supreme Court invalidated the core of the Voting Rights Act’s preclearance regime in Shelby County v. Holder, civil rights activists proposed a variety of legislative responses. One set of responses, which gained quick favor in influential precincts in the legal academy, sought to move beyond measures like the Voting Rights Act that targeted voting discrimination based on race or ethnicity. These responses instead sought to eliminate certain problematic practices that place too great a burden on any individual’s vote. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, at least as a formal matter they provide uniform protections to everyone. As Bruce Ackerman shows in his latest We the People volume, voting rights activists confronted a similar set of questions — and at least some of them opted for a universalist approach — during the campaign to eliminate the poll tax.

The voting rights context is hardly unique. Across an array of different contexts, scholars and activists have proposed universalist responses to address problems that group-oriented civil rights approaches have not fully resolved. Universalist responses have many possible strengths: tactically, in securing political support for and broader judicial implementation of laws that promote civil rights interests; substantively, in aggressively attacking the structures that lead to inequality; and expressively, in avoiding essentializing identity and emphasizing human commonality across groups. But they have possible drawbacks along all three of these dimensions as well. Although scholars have addressed some of these strengths and drawbacks in the context of specific proposals for universal responses to civil rights problems, no work has attempted to examine these issues comprehensively.

This essay attempts such a comprehensive examination. It argues that neither universalistic nor particularistic approaches can fully address our civil rights problems. Even in any specific context — whether voting, higher education, employment, disability, or the interpretation of the Fourteenth Amendment — neither universalistic nor particularistic approaches can provide the complete answer. Rather, the proper mix of universalistic and particularistic policies requires a highly context-specific analysis. Nonetheless, there are some common dynamics of universalistic and targeted civil rights policies, and these dynamics offer lessons for policymakers approaching any given civil rights context. This essay aims to draw out some of these general lessons and then sketch how they might apply to the civil rights context in which questions of universalism are most acute at the moment — the context of voting discrimination. The essay argues that the proper response to Shelby County will fail unless it goes well beyond universal protections of voting rights. Rather, the voting rights regime must also provide robust protection against race discrimination specifically.

December 17, 2013 in Election Law, Right to Vote | Permalink | Comments (0)

Sunday, December 15, 2013

Election laws protecting political parties in Ohio?

The Columbus Dispatch's Jim Siegel brings this interesting story covering the growing dispute over Ohio's voting laws. Here's how the story begins:

Outside the Statehouse, Ohio’s election system is designed to run as a bipartisan machine in which the two parties watch over the process, and each other, to ensure that no one gains an unfair advantage.

 

Inside the Statehouse is very different.

 

“Elections are the only game in town where the players get to make their own rules,” said Aaron Ockerman, executive director of the Ohio Association of Elections Officials.

 

Few issues have led to more-heated partisan rhetoric than election-law changes. Nearly every significant proposal is greeted with cries of voter suppression, disenfranchisement and racism from Democrats whose only real chance of stopping the bills are ballot referendums or lawsuits.

 

“Unfortunately, the GOP agenda on changing election laws is not to solve the problems … and to create burdens on voters,” said Rep. Kathleen Clyde, D-Kent. “We’re all for common-sense solutions, but that’s not what we’re seeing.”

 

This year, bills altering early voting, provisional balloting, absentee applications and minor-party recognition have ignited fights.

 

Some of it is posturing by Democrats, said Sen. Bill Seitz, R-Cincinnati. There is, he said, also an ideological divide, as Republicans think voters have a responsibility “to provide minimally accurate information to the board of elections and take responsibility to getting themselves to the right place at the right time.”

 

Democrats, he said, want “Kroger voting,” open 24/7, where voters get, at taxpayers’ expense, complete convenience “so they can saunter down there whenever they damn well please.”

Sen. Seitz's chuckle-worthy "saunter[ing]" voter aside, I find it interesting that Siegel led by describing election law-making as a two-party tug-of-war. Under such circumstance, the subject of American democracy is no longer the citizen but rather the parties. In the election law context, this marginalizes the citizen's role in the democratic process at precisely the point her duty is of the greatest import--when exercising the individual right to vote. What's worrisome, it seems to me, is that Siegel's tug-of-war now is accepted as just the-way-things-are.   

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December 15, 2013 in Election Law, Right to Vote, Voter ID | Permalink | Comments (0)

Friday, December 13, 2013

Voting Rights Disclosure

The title of this post comes from this recent article arguing that required disclosure of changes to voting rules for only federal elections provides insufficient protection against voting discrimination in state and local elections--in the jurisdictions in which the majority of election changes are made. Here's the abstract:

In "Beyond the Discrimination Model On Voting," 127 Harvard Law Review 95 (2013), Professor Samuel Issacharoff proposes that Congress turn away from what he considers the outdated and “limited race-driven use” of the Fifteenth Amendment and instead protect all types of voters from partisan manipulation using a “non-civil rights” Elections Clause approach. Specifically, Issacharoff proposes that jurisdictions disclose changes to voting rules for federal elections. This Essay argues that Issacharoff’s approach is incomplete. Contemporary discrimination exists and warrants attention — particularly where fast-growing minority populations threaten the status quo. This discrimination differs from simple partisan manipulation, as the discrimination reduces incentives for cross-racial coalitions and fuels racial division. Further, Issacharoff’s choice to move “beyond” race and abandon the Fifteenth Amendment limits his proposal to federal elections. As a result, his proposal would overlook significant problems — at least 86.4% of all election changes that resulted in VRA section 5 objections since 2000 would not have been disclosed under Issacharoff’s proposal. Unlike the high-profile restrictions he targets (e.g., photo ID triggered by “Republican control of the state legislature”), local voting changes missed by Issacharoff’s proposal are often decisive factors in non-partisan elections, attract little national media attention, and go unchallenged by local voters who lack resources to bring lawsuits. Congress should deter voting discrimination by using the Fifteenth Amendment and the Elections Clause to require disclosure of election changes for federal, state, and local offices, as well as to require more detailed reporting than Issacharoff’s proposal. Finally, disclosure alone is not enough. Congress should also strengthen the VRA Section 3(c) bail-in procedure and streamline voting rights litigation. Selecting between the Fifteenth Amendment and the Elections Clause is a false choice, as we can work both to prevent voting discrimination and to improve access to voting for all Americans.

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December 13, 2013 in Election Law, Right to Vote | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 13, 2013

Advisory committee says NSA's mass surveillance should continue under new privacy constraints.

Investigation finds that guns website posts ads from sellers without licenses; Guardian's Michael Cohen claims America's gun carnage continues with no end in sight; and, gun club hopes to curb violence by teaching young people different ideas about guns.

Trial in North Carolina voter ID case is scheduled for July 2015.

Michigan restricts abortion insurance offered through new exchanges.

Civil rights suit alleges deputies pepper sprayed a couple and beat the husband after he held train doors open for his wife; civil rights suit filed after sheriff's deputy makes a man sit and kneel on hot asphalt for nearly half an hour, causing second-degree burns; and, civil rights groups say Dallas PD has a pattern of using excessive force.

Same-sex couples now will receive equal treatment when applying for federal student loans.

 

December 13, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Gun Policy, Right to Vote, Same-sex marriage, Voter ID | Permalink | Comments (0)

Thursday, December 12, 2013

CRL&P Daily Reads: Dec. 12, 2013

How gun control is losing, badly; gun control groups focus on states; report says reducing gun violence requires early intervention for troubled youth; Ana Marie Cox claims Congress is scared of the gun lobby; but, gun control activists are staying positive.

Operator of revenge porn site says it's 'ruining my life', and his court date is scheduled.

Former contractor files a civil rights suit alleging the federal goverment harassed him because of an auto-complete error in Google search; and, Miami Gardens police chief resigns following allegations of racial profiling.

North Dakota Supreme Court weighs arguments in abortion case challenging ban on drugs to terminate pregnancies; and, legislators share personal stories about abortion.

No agreement on court date for North Carolina's voter ID case.

NSA chairman says mass surveillance is the best way to protect U.S.; Judge Napolitano warns about NSA mass surveillance; and, 'The Raven' Revisited.

 

December 12, 2013 in Abortion, Civil Rights Litigation, Election Law, Fourth Amendment, Gun Policy, Revenge Porn, Right to Vote, Voter ID, Web/Tech | Permalink | Comments (0)

Wednesday, December 11, 2013

Our Nation has a Secret: Felony Disenfranchisement in America

Yesterday, on HuffPost, the NAACP's Jokata L. Eaddy reminded us that many Americans remain disenfranchised. The title of ths post comes from Eaddy's post, in which she writes:

Laws preventing returning prisoners from voting originated prior to the Reconstruction era in an attempt to stem the growth of the black voting bloc and black electorate. Today, the effects are the same. The latest data reveals that nearly six million people cannot vote because of felony disenfranchisement laws practiced in across 48 states and the District of Columbia. More than two million of those disenfranchised are black.

 

Florida, Kentucky, and Iowa practice permanent disenfranchisement, erecting impenetrable barriers for people who are no longer incarcerated. Virginia made some strides after an executive order this summer granted automatic restoration of rights to people with non-violent felony convictions; however, that order's future will rely on the Governor-elect's agenda beginning in 2014. Kentucky and Iowa are slowly embracing change, but until those laws are amended in their state Constitutions, like this year's history-making legislation in Delaware, each state is still behind the curve. 

For decades, the United Nations has recognized that the right to vote and the right to be free from discrimination as integral components of our international system. This is why groups like the NAACP, The Sentencing Project, and the ACLU have made continuous efforts to highlight how felony disenfranchisement laws violate these principles and our country's international obligations. This year the United Nations Human Rights Committee signaled that felony disenfranchisement practices would be a priority during a March 2014 review of the United States' obligations to the International Covenant on Civil and Political Rights.

 

Additionally, a growing number of nations have supported UN resolutions inclusive of language calling on countries to ensure that all citizens are granted the right and opportunity to vote regardless of incarceration status.

While felon disenfranchisement gets comparatively little coverage, I'm not convinced that it's a secret. As I've noted, several potential Republican presidential candidates have stated their support for extending the right to vote to ex-felons. Sen. Rand Paul said so much earlier this year; and, Sen. Rich Santorum and then presidential candidate Mitt Romney exchanged attacks over Santorum's support for such an extension in a 2012 presidential primary in South Carolina. In October, The Atlantic covered felon disenfranchisement and the ways in which it shifts political power away from minority communities; and, The American Prospect recently ran this cover story on the history of felon disenfranchisement. Indeed, because of the commitment of advocates like Eaddy, felon disenfranchisement seems to be of increased interest.

However, Eaddy is certainly correct in suggesting that political progress on the issue has been frustratingly slow. The problem, it seems to me, is that felon disenfranchisement is easily separable from other voting rights issues because of the subjects of the disenfranchisement. Politicians and the media largely ignore issues affecting felons and ex-felons for those that produce political advantages and higher ratings. That is, we know about felon disenfranchisement, but politicians and the media can convince us that the issue is less pressing than others.

For this reason, advocates ought to consider how to align extension of the franchise to felons and ex-felons with ongoing debates over the right to vote more generally. I have made my pitch here

Some helpful law review articles:

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December 11, 2013 in Equal Protection Clause, Right to Vote, Theories of Punishment | Permalink | Comments (0)

Sunday, December 8, 2013

CRL&P Daily Reads: Dec. 8, 2013

Saturday, December 7, 2013

Does § 2 of the 14th Amendment impact analysis of VRA's preclearance requirement?

In The Constitutional Structure of Voting Rights Enforcement, Professor Franita Tolson argues that by viewing Congress's authority under section 5 of the Fourteenth Amendment in the context of section 2 of the amendment, Congress's authority to regulate voting and elections is broader than the preclearance requirement of the Voting Rights Act (VRA). Such reconsideration suggests that the preclearance requirement is within Congress's section 5 enforcement authority. Here's the abstract:

Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments, but in answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Section 2, with its low threshold for violations (i.e., abridgment on almost any grounds) that trigger a relatively extreme penalty (reduced representation), illustrates the proper means/ends fit for congressional legislation passed pursuant to section 5 to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical links between the Fourteenth and Fifteenth Amendments, links that provide a broad basis for Congress to regulate state and federal elections. Contrary to the Supreme Court’s recent decision in Shelby County v. Holder, this Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and thus is consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.

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December 7, 2013 in 14th Amendment, Election Law, Right to Vote, Voter ID | Permalink | Comments (1)

Friday, December 6, 2013

CRL&P Daily Reads: Dec. 6, 2013

Thursday, December 5, 2013

Democracy and renewed distrust: Equal protection and the evolving judicial conception of politics

The title of this post come from this article arguing that the Court has become less deferential towards legislative efforts to protect the equal protection rights of minorities. According to the author, this change is the result of both shifting views about the political power of minorities and an acceptance of public choice theory. Here's the abstract:

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.

I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.

If this argument is correct, this shift towards a less deferemtial standard conflicts with its decision in Crawford v. Marion Co. Election Bd., in which the Court demonstrated incredible deference towards a state legislature's authority to enact election laws. 553 U.S. 181 (2008). In Crawford, even though it acknowledged that the state had not shown the existence of voter fraud, the Court accepted the state's explanation that the voter ID law was needed in order to prevent such fraud (even though opponents had argued that the law would negatively impact minorities). ("The only kind of voter fraud that [the law] addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indian at any time in its history."). Indeed, writing for the Court, Justice Stevens claimed that the justifications offered in support of the law were "valid" and "sufficiently strong" to uphold its constitutionality. 

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December 5, 2013 in 14th Amendment, Election Law, Equal Protection Clause, Right to Vote, Voter ID | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 5, 2013

Massachussetts legislative committee on election laws considers voter ID bill; Mississippi's Secretary of State claims that 90 percent of the state's citizens already have ID required by new voting law; and, voting rights group to advocate for laws that expand voting and access to the polls in all 50 states.

Civil rights lawsuit filed against a police officer who allegedly broke an elderly man's arm in a roadside incident while off-duty; taxpayers in a Rhode Island town will cover $7 million settlement agreed to after a confrontation in which the police shot a teen 9 times leaving him paralyzed; and, wrongful death claim against California police for the shooting of a suicidal man is allowed to proceed.

Support for stricter-gun laws is dropping.

Federal judge hears oral arguments on Utah's same-sex marriage ban.

Tennessee asks state Supreme Court to provide dates of execution for 10 inmates.

NSA tracks cell locations worldwide.

 

December 5, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Gun Policy, Right to Vote, Same-sex marriage, Theories of Punishment, Voter ID, Web/Tech | Permalink | Comments (0)

Monday, December 2, 2013

CRL&P Daily Reads: Dec. 2, 2013

Sunday, December 1, 2013

CRL&P Daily Reads: Dec. 1. 2013

Saturday, November 30, 2013

CRL&P Daily Reads: Nov. 30, 2013

Three-judge panel reverses dismissal favoring City of Chicago in case alleging it responds more slowly to 911 calls made by Blacks and Hispanics.

WaPo explains how recent abortion decisions affected the Senate's debate over the filibuster.

Columbus Dispatch explores Ohio Bureau of Motor Vehicles panel criteria for reviewing vanity plates.

Voting rights activists claim Los Angeles County redistricting discriminates against Latinos; and, Cleveland Plain Dealer editorial board says pending voting bills restricting early voting and mandating ballot uniformity are voter suppression measures.

French parliament wants to impose new fines on solicitors of prostitution services.

 

November 30, 2013 in Abortion, Election Law, First Amendment, Freedom of Speech, Right to Vote | Permalink | Comments (0)

Friday, November 29, 2013

CRL&P Daily Reads: Nov. 29, 2013

Thursday, November 28, 2013

CRL&P Thanksgiving Reads: Nov. 28, 2013

NSA has been monitoring the porn-watching habits of suspected radicals, which The Atlantic's Friedersdorf claims is bad for democracy; NSA soon will be split up; The Progressive discusses 'The NSA's New McCarthyism'; Ambinder has a cool NSA org chart; and, Nice, Canada. Real nice.

Cleveland Plain Dealer calls on Senate to oppose pending stand-your-ground bill; Iowa gun club will remain next to school; and, woman sentenced to 20-years in prison after firing a warning shot to deter her allegedly abusive husband released the night before Thanksgiving.

Congresswoman Fudge asks Holder to investigate Ohio's new voting laws; African-American youths pay higher 'time-tax' at the polls; and, Kentucky could be the next state to enact a voter ID law.

Federal judge decides NYPD must proceed with case of Occupy protester claiming an officer grabbed her breast.

 

November 28, 2013 in Civil Rights Litigation, Election Law, First Amendment, Fourth Amendment, Gun Policy, Right to Vote, Voter ID | Permalink | Comments (0)

Tuesday, November 26, 2013

CRL&P Daily Reads: Nov. 26, 2013

African American judge alleges that UCLA police used excessive force when they stopped him ostensibly for not wearing his seat belt.

NSA likely accessed Google and Yahoo user data through fiber-optic cables used to connect data centers; Guardian columnist says NSA's surveillance program demonstrates hypocrisy of 'Five Eyes' countries; U.S. officials worry that Snowden might still have a large cache of intelligence data; and, Jeff Jarvis wades through more hero/villain-talk regarding Snowden.

The Week examines the recent difficulties of anti-abortion groups at the polls.

Mississippi Democrats say new voter ID law will hurt both parties, but the state is ready to start issuing voter ID cards.

Civil rights group updates its app for reporting TSA complaints.

 

November 26, 2013 in Abortion, Election Law, Excessive Force, Fourth Amendment, Right to Vote, Voter ID | Permalink | Comments (0)

Monday, November 25, 2013

CRL&P Daily Reads: Nov. 25, 2013

Saturday, November 23, 2013

CRL&P Daily Reads: Nov. 23, 2013

Friday, November 22, 2013

CRL&P Daily Reads: Nov. 22, 2013