Civil Rights Law & Policy Blog

"Race, Place, and Power"

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

A generation ago, the Supreme Court upended the voting rights world. In the breakthrough case of Thornburg v. Gingles, the Court held that minority groups that are residentially segregated and electorally polarized are entitled to districts in which they can elect their preferred candidates. But while the legal standard for vote dilution has been clear ever since, the real-world impact of the Court’s decision has remained a mystery. Scholars have failed to answer basic empirical questions about the operation of the Gingles framework. To wit: Did minorities’ descriptive representation improve due to the case? If so, did this improvement come about through the mechanisms — racial segregation and polarization — contemplated by the Court? And is there a tradeoff between minorities’ descriptive and substantive representation, or can both be raised in tandem?

In this Article, I tackle these questions using a series of novel datasets. For the first time, I am able to quantify all of Gingles’s elements: racial segregation and polarization, and descriptive and substantive representation. I am also able to track them at the state legislative level, over the entire modern redistricting era, and for black and Hispanic voters. Compared to the cross-sectional congressional studies of black representation that form the bulk of the literature, these features provide far more analytical leverage.

I find that the proportion of black legislators in the South rose precipitously after the Court’s intervention. But neither this proportion in the non-South, nor the share of Hispanic legislators nationwide, increased much. I also find that Gingles worked exactly as intended for segregated and polarized black populations. These groups now elect many more of their preferred candidates than they did prior to the decision. But this progress has not materialized for Hispanics, suggesting that their votes often continue to be diluted. Lastly, I find a modest tradeoff between minorities’ descriptive representation and both the share of seats held by Democrats and the liberalism of the median legislator. But this tradeoff disappears when Democrats are responsible for redistricting, and intensifies when Republicans are in charge. In combination, these results provide fodder for both Gingles’s advocates and its critics. More importantly, they mean that the decision’s impact can finally be assessed empirically.

“I did my time; I did everything I was supposed to do. I paid the courts, I paid the fines and got my life back on track..."

...explains one woman who hopes to vote this November thanks to an executive order by Virginia Gov. Terry McAuliffe (D) restoring voting rights to former felons. However, Virginia Republicans recently challenged the governor's authority to issue the order. As The New York Times's Sheryl Gay Stolberg explains:

In issuing his sweeping order, Mr. McAuliffe made expansive use of his clemency powers to effectively nullify a Civil War-era provision in the State Constitution that barred convicted felons from voting for life — one of the harshest disenfranchisement policies in the nation. In an interview previewing his announcement, Mr. McAuliffe said his legal authority to do so is “ironclad.” But Republicans say the governor lacks blanket authority to restore voting rights and must instead do so on a case-by-case basis — as his predecessors in both parties have done.

 

“He’s really put a stick in the legislature’s eye,” said Speaker William J. Howell of the Virginia House of Delegates, the lead plaintiff in the Republican suit [challenging the governor's order]. He said the suit “has nothing to do with” the registration drive, and rejected Democrats’ accusations that Republicans were trying to suppress the black vote: “The governor has whipped them up.”

 

Still, race is a powerful subtext; African-Americans make up 19 percent of Virginia’s population, but 45 percent of those covered by the governor’s order. The Sentencing Project, a Washington research organization, says one in five African-Americans in Virginia cannot vote because of felony convictions.

 

“When you look at the fact that of the individuals who are most impacted by this, 45 percent of them are African-American, what conclusion can we draw?” asked State Senator Mamie Locke, chairwoman of the Virginia Black Legislative Caucus, which held “Voices for The Vote” rallies on Saturday in three Virginia cities.

 

Organizers of the registration drive say they would like to sign up 25,000 new voters in time to cast ballots on Election Day.

 

“That could make a difference,” said Bob Holsworth, a longtime political analyst in Virginia, noting that some state races in Virginia had been decided by relatively slim margins, of 5,000 or 6,000 votes.

As it stands, Iowa, Florida and Kentucky are the only other states that deny voting rights to felons for life. 

"One Person, One Vote, Eight Justices"

The Atlantic's Matt Ford has this report on yesterday's SCOTUS decision in Evenwel v. Abbott. He begins:

The U.S. Supreme Court unanimously turned back a legal effort to reinterpret the “one person, one vote” constitutional rule Monday, ruling that states may rely on total population when drawing their legislative districts.

 

The case, Evenwel v. Abbott, was brought by two Texas voters, Sue Evenwel and Edward Pfenninger, who challenged the apportionment of Texas Senate districts. With the exception of the U.S. Senate, every American legislative body is apportioned by total population under the “one person, one vote” rule first outlined by the Court in the 1960s.

 

Evenwel and Pfenninger argued that counting non-voters—children, the mentally disabled, disenfranchised prisoners, and non-citizens—broke that rule and diluted their political power in violation of the Fourteenth Amendment’s Equal Protection Cause. Many observers, including my colleague Garrett Epps, noted that Evenwel’s interpretation would redraw the American political map in favor of a whiter, older, and more conservative electorate.

 

“In agreement with Texas and the United States, we reject appellants’ attempt to locate a voter-equality mandate in the Equal Protection Clause,” Justice Ruth Bader Ginsburg wrote for the majority. “As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts.”

U of Minnesota opens online Election Administration program

The National Conference of State Legislatures has the details here.

 

"Rethinking District of Columbia Venue in Voting Rights Preclearance Actions"

The title of this post comes from this essay by Professor Michael Solimine, the abstract of which states:

In 2013 the Supreme Court in Shelby County v. Holder vitiated the preclearance provision of the 1965 Voting Rights Act, Section 5, by declaring unconstitutional the coverage provision of Section 4. What garnered virtually no attention in the decision or subsequent proposals to amend the preclearance provision was the requirement in Section 5 that applications for judicial preclearance must be filed before a three-judge district court in the District of Columbia. This essay argues that this exclusive venue in DC be revisited in the statutory efforts to revive preclearance. Venue of such actions in DC was a controversial issue when preclearance was first passed, and its initial reauthorizations, but the controversy eventually faded. This essay argues that the debate should be revived. The original reasons for exclusive venue are no longer sound or necessary today. There is no present need for reasons of uniformity or expertise to vest exclusive venue of preclearance actions in DC, and should Section 5 be statutorily revised, the jurisprudence under that provision could benefit from the application of normal venue rules, which would permit percolation of issues in federal courts throughout the country. It might also make the revival of some sort of preclearance more politically palatable. Preclearance enforcement actions were already litigated outside of DC, and there are good reasons to extend all future preclearance litigation in the same way.

"The Two Trends that Matter for Party Politics"

The title of this post comes from this intriguing essay by Professors Joseph Fishkin and Heather Gerken, the abstract of which states:

 

In this essay, Professors Fishkin and Gerken argue that the Supreme Court’s deregulation of the campaign-finance system is fueling a shift toward "shadow parties" -- groups that are separate from the formal party apparatus but run by party insiders and central to the workings of the party writ large. They argue that the roots of this trend are to be found, paradoxically, not in the two parties’ weakness but in their strength. Contrary to the emerging conventional wisdom in the field, the authors suggest that the Court’s 2014 decision in McCutcheon v. FEC will do little to arrest this trend. The essay closes with a brief exploration of the trend’s normative implications. This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.

Note: This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.

ProPublica reviews voting rights controversies since SCOTUS's 2013 Shelby Co. decision

Here.

"Microwaving popcorn could have brought voting to a standstill..."

...writes Ted Selker of one Election Day near-disaster at a polling place in Nevada. To demonstrate how "[s]mall design decisions have major consequence," Selker highlights how poll workers there hoped to power 20 voting machines through a single outlet. It didn't work, of course, and when the batteries went kaput shortly thereafter they opted for another outlet that also powered a microwave oven. 

After witnessing comparable Election Day fiascoes elsewhere, Selker concluded that these problems are most often ones of design -- polling places are "often hard to navigate and not well thought out." As he explains in this Wired.com post, Selker thought that if polling places accommodated voters the way, say, a Starbucks catered to coffee drinkers then voters' experiences would improve. Voter turnout would increase thereby, a belief later confirmed by physical design methods expert Tom Burchard: "The challenge is to get people feeling like they took part in democracy, in the fulfillment of their citizenship rather than feeling like they just finished the SAT, hoping they filled in all the ovals right under pressure.” But Selker notes:

There’s a whole different organizational structure for voting [than for Starbucks], because...[of t]he autonomy of local governments in polling decisions... So it’s like trying to improve design decisions over tens of thousands of independent, small coffee shops across the country.

Nevertheless, Selker and his crew set out to create -- with the help of an Election Assistance Commission grant -- a software program that could help election officials design more efficient polling places. The result: an app called the Polling Place Support Tool that "works as a visual planner for polling places before election day and helps polling-place staff track glitches and bottlenecks during the big event." It also provides poll workers a forum for discussing improvements to polling place structure and design. As Selker explains:

The app is for voting staff and volunteers. It lets them view paths and bottlenecks as they position registration tables, voting booths, (and even electrical outlets) on a floor plan of their polling place. Then on election day, it helps keep a log by storing photos of potential problems, allowing staffers to post and annotate them with text, and pin them to the floor plan.

 

[...]

 

The goal is to help election officials learn how to design and administer polling places with the sophistication of top designers of high-throughput stores. Without losing the privacy, security, and integrity of the system, we need to think like the customer and anticipate any potential snafus in the physical space, staff training, digital tools, and the transitions between them.

The program is set to be tested by election officials in Maryland and L.A. county later this year. 

SCOTUS decision allowing Texas to implement new voter ID law in coming elections assuredly disenfranchises lifelong voters

The Guardian's Ed Pilkington explores the effect of Texas's severely restrictive voter ID law on the state's citizens. In particular, Pinlkington highlights the disenfranchisement of life-long Texan, Eric Kennie, a man who has never even left his hometown -- Austin, TX. Forty-five-year-old Kennie reportedly has voted consistently ever since he turned 18. But, as with an estimated 600,000 of his fellow Texans, SCOTUS's decision allowing the state to impose the new voter ID law -- notwithstanding the district court decision that the law unconstitutionally discriminates against minority voters -- assures his disenfranchisement in the coming elections.

As Pilkington explains, because he doesn't have any of the required ID cards, Kennie must get an election identification card (EIC), which, sadly, will not happen:

To get an EIC, Kennie needs to be able to show the Texas department of public safety (DPS) other forms of documentation that satisfy them as to his identity. He presented them with his old personal ID card – issued by the DPS itself and with his photo on it – but because it is more than 60 days expired (it ran out in 2000) they didn’t accept it. Next he showed them an electricity bill, and after that a cable TV bill, but on each occasion they said it didn’t cut muster and turned him away.

 

Each trip to the DPS office involved taking three buses, a journey that can stretch to a couple of hours. Then he had to stand in line, waiting for up to a further three hours to be seen, before finally making another two-hour schlep home.

 

In one of his trips to the DPS last year they told him he needed to get hold of a copy of his birth certificate as the only remaining way he could meet the requirements and get his EIC. That meant going on yet another three-bus trek to the official records office in a different part of town.

 

The cost of acquiring a birth certificate in Texas is $23, which may not sound much but it is to Kennie. He is poor, like many of the up to 600,000 Texans caught in the current voter ID trap.

But Kennie is a "scrapper," and his meager income makes the cost of obtaining a new birth certificate quite burdensome. 

On a usual day he makes about $15 to $20 from recycling the cans and other scrap. On a good day – after a holiday like Valentine’s Day or Easter when people consume more – his earnings can rise to as much as $40 a day. He has no bank account or credit cards, and no savings – he only deals with cans and cash.

 

I asked him how much $23 means to him. His said what he does when he feels flush with money is decide to splurge on a special treat for himself and his friends. “I do chicken Tuesday at Popeyes.”

 

[...]

 

So what passes as a reckless binge for Eric Kennie – a splurge on about $10 worth of fried chicken – is less than half of what he spent getting himself a copy of his birth certificate.

 

The outcome was perhaps predictable by now: the birth certificate wasn’t up to scratch either. When he took it to the DPS (another three buses there, three buses back, another two hours waiting in line) they told him that the name on the birth certificate didn’t match the name on his voter registration card. The birth certificate has him down as Eric Caruthers – his mother’s maiden name – even though his parents were married at the time he was born.

What options remain available to Kennie? As Pilkington observes, what would be expected of Kennie in order to exercise his right to vote is tragically absurd:

In Eric Kennie’s case, there is no clear way out of the morass. He could go to court and ask for the name on his birth certificate to be changed to correct the error, but that would take hiring a lawyer for a fee that he could not afford.

 

Or he could swallow his pride and take up the identity given on his birth certificate – turning himself into Eric Caruthers. He doesn’t want to do that – he said it would make his deceased father “turn in his grave”. It would also be profoundly ironic: he would in effect be impersonating someone else in order to get around a law ostensibly designed to root out impersonation at the polls.

"The precarious position of voting rights"

Advancement Project co-director Penda Hair's article at MSNBC.com, which begins:

Voting is the cornerstone of democracy – at least, it should be. But American democracy shifted dramatically on June 25, 2013, when the Supreme Court’s Shelby County v. Holder decision gutted a landmark provision of the Voting Rights Act (VRA). A majority of justices struck down the coverage formula for the VRA’S Section 5, which had required federal pre-approval of new voting practices in mostly southern states, effectively halting its protections. The court acknowledged that “voting discrimination still exists,” and noted that Section 2 bans voting discrimination on the basis of race throughout the land.

 

This month, the power of Section 2 to combat such wrongs was put to the test in the U.S. Supreme Court, with cases seeking to stop voting restrictions under Section 2 in North Carolina and Wisconsin. The high court’s divergent decisions in these cases – recognizing the harm of unjust policies in one state, but failing to see the damage to voters in another – illustrate how post-Shelby voting rights are in a tensely precarious position.

"Republican legislatures have enacted all sorts of thinly disguised ways to suppress the vote…"

...writes USA Today's editorial board, adding that voter ID laws only compound the existing problem of "too few" people voting.

Partisan attempts to suppress the vote are bad enough. What's just as disappointing is how the U.S. vote gets suppressed by voters themselves.

 

While the rest of the world's established democracies typically see 70% or more of their eligible voters go to the polls, the USA typically sees just 60% in presidential elections and an abysmal 40% in midterm elections like the one coming up next month.

 

The problem in places such as Ferguson, Mo. — where a registration drive after the fatal shooting of Michael Brown yielded just 128 new voters — isn't that too many people are voting. It's that too few are.

SCOTUS "decision…to allow Texas' restrictive voter identification law to go into effect is deeply disturbing and simply wrong…"

...according to Professor Erwin Chemerinksy, dean of UC-Irvine School of Law. In this op-ed for The Orange Co. Register, Chemerinsky writes:

The Texas law, as Justice Ruth Bader Ginsburg noted Saturday, is “the strictest regime in the country.” Unlike other states, such as Wisconsin, Texas will not accept student identification from in-state universities or identification cards issued by Native American tribes or photo ID cards issued by the U.S. Department of Veterans’ Affairs. Obtaining the permissible forms of identification requires obtaining a state-issued birth certificate for $22. The Supreme Court long ago ruled that a state cannot charge even a $1 fee for voting.

 

[U.S. District] Judge [Nelva Gonzalez] Ramos concluded that the effect of the Texas law will be that about 600,000 voters, primarily African American and Latino, will be kept from voting. Judge Ramos agreed with the U.S. Justice Department and the challengers that the Texas law violated Section 2 of the Voting Rights Act of 1965 because it was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result.

 

[...]

 

There are so many things that are troubling about the court’s action. It is the first time in decades that the Supreme Court has allowed an election law to go into effect after a federal trial court found it to be unconstitutional race discrimination. Appellate courts, including the Supreme Court, are supposed to defer to the fact-finding by the trial courts. Here, the district court held a trial, engaged in extensive fact-finding and wrote a very detailed opinion.

 

Also, this continues a trend in recent weeks of the Supreme Court deciding which election systems can go into effect in unsigned orders without written opinions. The court, over four dissents, allowed Ohio to change its election system to limit early voting. In other unsigned orders, the court permitted a North Carolina law and prevented a Wisconsin law from going into effect.

 

A crucial aspect of the judicial process is that judges give reasons for their rulings. This explains the basis of the decisions to the litigants, provides guidance for lower courts and makes the rulings seem more than arbitrary exercises of power. Even though the court needed to act quickly, there is no reason why it could not write at least brief opinions explaining its decisions. Yet, the court decided that the Texas law could go into effect without offering the slightest explanation.

[h/t Election Law Blog]

"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.

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.

"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.

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

...writes WaPo's editorial board.

The New Yorker profiles professor hoping to create super PAC to end all super PACs

In 'Embrace the Irony,' The New Yorker's Evan Osnos relates Professor Lawrence Lessig's energetic effort to reform post-Citizen United campaign finance through MaydayPAC, a superPAC that funds candidates who support overhauling -- or destroying -- the status quo. This fascinating read begins:

Last spring, Lawrence Lessig, a fifty-three-year-old Harvard legal theorist who opposes the influence of money in politics, launched a counterintuitive experiment: the MaydayPAC, a political-action committee that would spend millions of dollars in an attempt to elect congressional candidates who are intent on passing campaign-finance reform—and to defeat those who are not. It was a super PAC designed to drive its own species into extinction. Lessig adopted the motto “Embrace the irony.”

 

Others had tried pouring money into politics in order to end the pouring of money into politics, but never on the scale that Lessig wanted. In 2012, Jonathan Soros, a son of George Soros, the billionaire and liberal donor, raised and spent $2.7 million to help nine candidates committed to campaign-finance reform. Lessig and his co-founder, the Republican consultant Mark McKinnon, planned to spend more than four times that amount in the six months leading up to midterm elections, on November 4th. If their efforts succeeded, they aimed to raise hundreds of millions of dollars on as many as eighty races in the 2016 election. Lessig believed that the campaign-finance system needed the political equivalent of an “atomic bomb,” he told me. Change would become impossible, he said, “unless we blow it up now and we find some way to make it so that these bones don’t set.”

"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:

 

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

A legal solution appears increasingly likely.

"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.

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:

• Protesters shot with pepper spray and rubber bullets say Ferguson police violated their civil rights
• Ferguson police officers seen wearing 'I am Darren Wilson' wristbands in show of solidarity with officer who killed 18-year-old Michael Brown
• There was a city council meeting last night in Ferguson, Mo.
• "Those lawful, peaceful protesters did not deserve to be treated like enemy combatants.”

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

Jeff Danziger at The National Memo:

"Voting Issues Going to the Voters"

At the National Conference of State Legislatures blog, Wendy Underhill breaks down the election laws that will appear on state ballots this November. 

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 report, Democracy 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.

* North Carolina v. McCrory 

"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.

Will low voter turnout this November result in still more restrictive voter ID laws?

The NAACP fears that it will. 

Jotaka Eaddy, the NAACP's voting rights director, told a panel on black turnout and voter suppression that "as a result [of the 2010 midterms] we saw a wave of voter-suppression laws." Eaddy said 22 states passed laws stiffening requirements on the identification needed to vote, a move that disproportionately affects poor and minority voters.

 

Added the Rev. William Barber, an NAACP board member: "We're in a position to have 2010 all over again unless we do something about it."

 

Polls have shown that Democrats, including black voters, are far less enthusiastic about the coming midterm elections than Republicans, who could win control of the U.S. Senate. President Obama has said that Democrats have to learn to mobilize voters in non-presidential elections.

MALDEF challenges SoCal city's at-large elections

In a recently filed lawsuit, the Mexican American Legal Defense and Educational Fund (MALDEF) claimes Bellflower, CA's at-large election system effectively disenfranchises black and Latino residents.

Bellflower is roughly 30-non-traffic-minutes south of Los Angeles.

Transgender Kansans worried state's voter ID law could disenfranchise some, chill others

Of course, Kansas Sec. of State Kris Kobach says transgender citizens need not worry because poll workers can account for changes to physical appearance when determining whether to accept someone's ID - a claim that deserves a punch-line. As The Topeka-Capital Journal's Andy Marso reports:

But that reassurance didn’t match the on-the-ground experience of Stephanie Mott, a Topekan who leads the Kansas Statewide Transgender Education Project.

 

Mott said the first time she voted under the new ID requirements, she was still registered as Steven Mott, and her ID still listed her as Steven Mott, so she gave that name, knowing that all the poll worker was instructed to match was name and appearance.

 

“The poll worker said ‘Name?’ and I said ‘Mott,’ “ Mott said. “She said ‘First name?’ and I said ‘Steven.’ Then she said ‘You’re not Steven,’ out loud to everybody within earshot. Then I had to explain to her I was transgender. Then I had to explain to her what that was.”

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 provision, 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.

'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:

• Shelby County attorney sets sights on Texas apportionment scheme
• "(Mis)Trusting States to Run Elections"
• Shelby County's impact on voting rights policy will likely be 'deeply destabilizing,' argue Profs. Charles and Fuentes-Rohwer

"The Judicialization of Politics: The Challenge of the ALI Principles of Election Law Project"

Professors Steven Huefner and Edward Foley recently released this important paper, which should be required reading for any election law aficionado. The abstract states:

The American Law Institute's "Principles of Election Law" Project is a clear example of the ALI tackling a new and perhaps difficult field. This article elaborates on the main challenges and opportunities that this Project presents. It begins with a brief overview of some of the unique features of election law as a field of American law. In light of these features, it then discusses the Project's work on the subject of disputed elections, and the Project's efforts to develop best practices concerning non-precinct voting. It then offers some concluding thoughts about the development of principles of election law.

"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.

N.Y. limit on contributions by independent groups violates First Amendment, says federal judge

A federal judge in New York did precisely what many knew he would do - he struck down the state's limit on campaign contributions by independent groups. According to the NYTimes:

In a five-page opinion, Judge Crotty lamented the influence of outsize donations in today’s political system. He wrote that the voices of regular citizens “are too often drowned out by the few who have great resources,” and disagreed with some of the Supreme Court’s analysis in the recent case, McCutcheon v. Federal Election Commission.

 

But despite his concerns, Judge Crotty wrote that he had no choice but to follow the Supreme Court’s lead in that case and in the landmark Citizens United campaign finance case, as well as the guidance of the Second Circuit.

 

“Our Supreme Court,” he wrote, “has made clear that only certain contribution limits comport with the First Amendment.” 

"The Play in the Joints of the Election Clauses"

The title of this post comes from this intriguing essay by Professor Derek T. Muller, the abstract of which states:

The Constitution delegates election administration to both the federal government and the state governments. But delineating the boundary between these sovereigns has not been a particularly easy task. The Supreme Court has not been inclined to offer precision regarding the proper scope of authority. This essay examines risk of overlapping roles in the Election Clauses among legislatures and executive officials, as litigation over those proper roles looms. It highlights the uncertainty in two recent Supreme Court opinions, Arizona v. Inter Tribal Council of Arizona and Shelby County v. Holder, and notes that the Court's jurisprudence has left considerable "play in the joints," not necessarily because the Election Clauses are in tension, but because of its unwillingness to explain how matters like voter identification and registration should probably be allocated. It identifies some initial solutions for categorizing certain types of election laws, and emphasizes the deep uncertainty in the existing jurisprudence.

"Election Law's Lochnerian Turn"

The title of this post comes from this upcoming essay by Professor Ellen D. Katz, the abstract of which states:

Part of a discussion on electoral “dysfunction,” this Essay suggests that the Roberts Court has come to view a good deal of contemporary electoral regulation as impermissibly redistributive. The Court, moreover, sees the type of political participation displaced by many contemporary regulations as a neutral baseline against which to gauge challenged regulations rather than itself the product of affirmative regulation. Put differently, this Essay presses the claim that the present Court confronts contemporary efforts to regulate the electoral process much like the Lochner Court approached progressive wage and hour legislation a century ago. It suggests that much of what the Roberts Court has been up to in the electoral arena may be explained by the dominant understanding of the Lochner era.

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 that 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:

• "(Mis)Trusting States to Run Elections"
• "The Future of Voting Rights in Indian Country Following Shelby County and Inter Tribal Council of Arizona"
• "Responding to Shelby County: A Grand Election Bargain"
• Voting rights activists hope courts will impose preclearance under VRA on five previously covered states
• Shelby County's impact on voting rights policy will likely be 'deeply destabilizing,' argue Profs. Charles and Fuentes-Rohwer
• Plaintiffs in voting rights lawsuits will have procedurally and substantively less protection under § 2 of VRA, writes Professor Stephanopoulos

"Scrutinizing Federal Electoral Qualifications"

The title of this post comes from this recent article by Professor Derek T. Muller, the abstract of which states:

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.

This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and scraps of judicial precedents in litigated cases. It concludes that states have no role in evaluating the qualifications of congressional candidates — the matter is reserved to the people, and to Congress. It then concludes that while states do have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power toelection officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns.

"(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.

"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.

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 begins 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.

CRL&P related posts:

• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Facebook "like" and First Amendment protection for the right to vote
• Remembering Tinker: The right to vote as expressive conduct
• Felon disenfranchisement, political power, and the First Amendment right to vote

"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.

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.

CRL&P related posts:

• Congressional Authority to Protect Voting Rights after Shelby County and Arizona Inter Tribal
• Shelby County's impact on voting rights policy will likely be 'deeply destabilizing,' argue Profs. Charles and Fuentes-Rohwer
• Plaintiffs in voting rights lawsuits will have procedurally and substantively less protection under § 2 of VRA, writes Professor Stephanopoulos
• Responses to civil rights problems: universalistic, particularistic, or both?
• Does § 2 of the 14th Amendment impact analysis of VRA's preclearance requirement?

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.

CRL&P related posts:

• Shelby County's impact on voting rights policy will likely be 'deeply destabilizing,' argue Profs. Charles and Fuentes-Rohwer
• Plaintiffs in voting rights lawsuits will have procedurally and substantively less protection under § 2 of VRA, writes Professor Stephanopoulos
• Brennan Center details best practices for reforming voting system
• Responses to civil rights problems: universalistic, particularistic, or both?
• Voting Rights Disclosure

"Tennessee Bills Introduced to Eliminate Need for Minor Parties to Submit Massive Petitions"

Ballot Access News relays this interesting development in Tennessee:

Bills have been introduced in both houses of the Tennessee legislature to return Tennessee to its pre-1961 ballot access rules for new and minor parties. As was the case before 1961, parties could be recognized if they filed paperwork identifying their officers and bylaws, but no petition would be needed. Their individual nominees would each need 25 signatures.

 

Under current Tennessee law, independent candidates only need 25 signatures, and candidates can get on primary ballot with 25 signatures. But minor party candidates can’t run, with their party label, unless their party submits over 40,000 valid signatures.

 

The bill, if enacted, would be similar to the Mississippi law on new and minor parties. Mississippi has never required a petition for a party to be on the ballot; it must merely be organized. The bills are SB 2575 by Senator Jim Kyle (D-Memphis) and Representative Craig Fitzhugh (D-Ripley). 

CRL&P related posts:

• Ohio Senate passes bill imposing restrictions on third party ballot access
• Green, Constitution parties join LPO's suit challenging constitutionality of Ohio's new ballot-access law

In Defense of 'Super PACs' and of the First Amendment

I have made a habit of posting papers debating various aspects of the post-Citizens United (pre-McCutcheon?) world of campaign finance under the First Amendment. Last week, I posted Outside Influence by Professor Anthony Johnstone, in which he explores the possibility of states and local communities regulating outside campaign spending through the "structural constitutional principles of political community"; and, yesterday, in The Last Rites of Public Campaign Financing?, Professor James Sample ponders the apparently desolate future landscape for proponents of campaign public financing.  The title of today's campaign finance contribution is also the title of this post. In In Defense of 'Super PACs' and of the First Amendment, Professor Joel Gora  argues that Super PACs are not actually the "threats to democracy" claimed by their opponents, but rather they serve as a "[boon to] speech and debate in our political process[.]" Here's the abstract:

This article is a defense of “Super PACs” and of the First Amendment principles that they embody, namely, that we need a robust, wide-open and uninhibited discussion of politics and government in order to make our democracy work. Like the famous Citizens United ruling in 2010, Super PACs have gotten a bad press and have been widely condemned as threats to democracy. But Super PACs are really nothing new. They trace their origins back to Buckley v. Valeo, the Supreme Court’s landmark 1976 free speech ruling which rejected any justification for limiting the independent expenditures for political speech. Thus, the day after Buckley, individuals and groups were free to spend whatever they wished to support or oppose political candidates.  Whether they were allowed to join together for such purposes was less clear. But Citizens United removed any lingering doubt by holding that any speaker – individual, corporate, union, non-profit – was free to make independent expenditures without prohibition or limitation. Based on those principles, a federal appeals court easily and unanimously ruled that what one person or group could do individually, several people or groups could do cooperatively, namely, pool their resources to get out their common message. That is a Super PAC.

As a result, Super PACs played a noticeable role in the 2012 federal elections. But despite popular misconception, they did not dominate or control those elections, accounting for only 10 percent of the campaign spending, almost all contributions to them were fully and publically disclosed, and almost no corporations played any role in any such Super PAC spending. Indeed, so far as is known, extremely few Fortune 500 companies have contributed to support a Super PAC. Rather, Super PACs enabled more speech and debate in our political process, a result to be desired most significantly under the First Amendment. So, rather than being a threat to democracy, Super PACs have been a boon.

CRL&P related posts:

• Old School/New School Speech Regulation
• Abrams's unsatisfying WSJ column on the 'most indefensible First Amendment ruling' this century
• California law enforcement arrest operator of revenge porn site
• Remembering Tinker: The right to vote as expressive conduct
• Facebook "like" and First Amendment protection for the right to vote

Citizens United exception permits state regulation of 'outside influence' in domestic politics

In Outside Influence, Professor Anthony Johnstone argues that states could curtail "outside influence" in state and local politics without violating "the otherwise universal speaker-neutrality rule of Citizens United" under protection of "the structural constitutional principles of political community." Here's the abstract:

By what rights do outsiders influence state or local politics? "Outsiders" include an array of persons other than the citizens of the community, including non-resident individuals, corporations, and various other organizations that channel the influence of those outsiders into a state or local political process. "State or local politics" include all politics, including elections held by states for federal officials. The question recurs in voting, petitioning, campaign finance regulation, and lobbying, as well as other areas related to political activity such as corporate governance. Relatively recent developments have accelerated the nationalization of American politics. These nationalizing forces, including the strengthening of non-party national political interest groups by federal legislation and judicial decisions, and national efforts to counter those groups' interests, pose the question more urgently now. 

This article considers how much outside influence matters to the constitutional analysis of state politics. It defends the principle applied in Bluman v. FEC as an exception to the otherwise universal speaker-neutrality rule of Citizens United, applicable at the state as well as the national level, and to out-of-state as well as foreign outside interests. It does so by drawing parallels between legal efforts to police national and state boundaries in politics, and assessing the competing rights claims of outsiders to cross those boundaries and participate fully in domestic politics. The article suggests that the structural constitutional principle of political community supports certain state regulations, but not prohibitions, of outside influence across a range of political activities.

Minor parties aided in Ohio ballot access by court ruling

The 6th Circuit has rejected the State of Ohio's request for an expedited appeal of a preliminary injunction against its new ballot access law. On November 6, 2013, Gov.  John Kasich (R) signed into law more stringent signature requirements for minor political parties wishing to appear on the state's electoral ballot in 2014 (and beyond). On January 7, District Judge Michael Watson granted the Libertarian Party of Ohio's (et. al.) request for a preliminary injunction against the law--describing its likely consequences as to the state's 2014 elections as "patently unfair." The title of this post comes from this Columbus Dispatch article explaining why the 6th Circuit's decision--on January 15--probably ended the dispute as to the law's applicability in 2014:

The 6th U.S. Circuit Court of Appeals cleared away perhaps a final hurdle for minor parties to reach the ballot this year by denying the state’s request to expedite its appeal of a lower court’s injunction against Senate Bill 193 yesterday.

 

The denial to expedite is critical because the filing deadline to participate in a primary is Feb. 5. The law placed on hold last week by U.S. District Judge Michael H. Watson would have canceled all primaries for minor parties this year and set new rules and signature requirements for minor-party candidates to make the ballot this fall; the judge ordered 2013 election rules for minor parties to be followed this year.

 

Without an expedited appeal, the state’s challenge of Watson’s ruling would not likely be heard until perhaps next year, long after the May 6 primary and Nov. 4 general election.

 

This means that Libertarian gubernatorial challenger Charlie Earl, assuming he submits 500 valid signatures from registered voters by the Feb. 5 deadline, would appear on a May 6 primary ballot and likely advance to the general election.

 

Senate Bill 193 was dubbed by critics as the John Kasich Re-election Protection Act because it is presumed that Earl could siphon off conservative votes for Kasich this fall. Earl was among those who filed suit seeking an injunction.

 

A spokeswoman for Attorney General Mike DeWine said, “Our folks are still reviewing” the appeals court’s ruling.

CRL&P related posts:

• Ohio's restrictions on minority party ballot access halted
• Green, Constitution parties join LPO's suit challenging constitutionality of Ohio's new ballot-access law
• Effect of Ohio's new ballot access law on 2014 election uncertain
• Federal judge suspends Ohio's restriction on petition circulators
• Ohio governor signs controversial ballot access bill, opponents to file lawsuit
• Ohio legislature to vote on controversial ballot access bill this week
• Ohio Senate passes bill imposing restrictions on third party ballot access

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.

CRL&P related posts:

• Plaintiffs in voting rights lawsuits will have procedurally and substantively less protection under § 2 of VRA, writes Professor Stephanopoulos
• Responses to civil rights problems: universalistic, particularistic, or both?
• Voting Rights Disclosure
• Does § 2 of the 14th Amendment impact analysis of VRA's preclearance requirement?
• Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere

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.

CRL&P related posts:

• Does § 2 of the 14th Amendment impact analysis of VRA's preclearance requirement?
• Democracy and renewed distrust: Equal protection and the evolving judicial conception of politics
• Brennan Center details best practices for reforming voting system
• Responses to civil rights problems: universalistic, particularistic, or both?
• Voting Rights Disclosure

Voter fraud in Ohio not 'a systemic problem'

In today's Cleveland Plain Dealer, Robert Higgs reports that instances of alleged voter fraud in Ohio during the 2012 elections typically were the result of confusion. The article begins:

Despite concerns by some Ohio lawmakers about voter fraud, most of the voting irregularities that elections officials reported during the 2012 general election did not result in criminal charges, the Northeast Ohio Media Group has found.

 

Prosecutors in counties large and small told the media outlet their investigations typically concluded that the irregularities resulted from confusion by voters or mistakes by elections officials rather than from people trying to game the system.

 

And while Republican lawmakers have introduced bills aimed at curbing voter fraud, some Republican prosecutors joined their Democratic counterparts in reporting no evidence of a widespread problem.

 

“Basically I found that there wasn't an overwhelming pattern of voter fraud,” said Butler County Prosecutor Michael T. Gmoser, a Republican in a Republican-dominated county. “There’s a couple of isolated incidents of people making bone-headed decisions.”