Civil Rights Law & Policy Blog

"Which Sinners Get to Vote in Alabama?"

The title of this post comes from this recent piece by The Marshall Project's Andrew Cohen examining the controversial Alabama law that gives local election officials significant discretion to deny former felons the right to vote. Cohen explains:

Nearly six million Americans of voting age will be disenfranchised this election year because they’ve committed crimes. Some are still in prison, but nearly four million others have served their sentences and are trying to re-enter society, most hoping to become engaged members of their communities. A few states make it relatively easy for ex-offenders to register and vote following their release and the completion of their probation and parole. A few other states make it impossible. (Here’s a helpful chart to help you track your own state’s rules.)

 

Between the extremes lies Alabama, a state with a long history of racially-motivated criminal justice laws and policies. Some ex-offenders—murderers and rapists, for example—are permanently precluded from voting unless they are pardoned. And some released inmates may eventually be permitted to cast a ballot. It depends on whether a local election registrar determines that their crimes constituted “moral turpitude” under the state’s constitution. That term is defined so loosely under state law that different bureaucrats in different counties have come to different conclusions about who gets to vote and who doesn’t.

 

State officials have been aware for many years that there is a problem with the vague definition of “moral turpitude.” In 2005, the state attorney general issued an opinion which did little to correct the ambiguity. A crime of “moral turpitude,” the state’s chief law enforcement official concluded, is “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general.” The determination in any given case on whether to allow an ex-offender to register to vote, the attorney general wrote, rests with the “moral standards” of the decision maker—i.e. each county’s registrar.

 

What crimes the attorney did identify in 2005 as immoral, moreover, did not necessarily match up with the definitions of those crimes under Alabama’s statutes. For example, it is unclear whether crimes involving the possession of drugs constitute “moral turpitude.” In 2007, the state’s court administration office tried also to better define crimes of “moral turpitude” but ended with a list of 70 felonies that did not match the attorney general’s list issued two years earlier. The state legislature, meanwhile, has remained silent on the issue since then despite repeated calls for more clarity.

 

The standard is so chaotic that it was challenged last month in federal court in a voting rights case now pending in the Middle District of Alabama. The complaint—Thompson v. Alabama—seeks class action status for Alabama residents disenfranchised by the law, alleging that it is unconstitutional under what’s left of the Voting Rights Act. The plaintiffs want a ruling that enjoins Alabama officials from barring any ex-offenders from voting on the basis of their past felony convictions—or their inability to pay “any legal financial obligations” as a result of their incarceration. The complaint, in other words, seeks a repudiation of the state’s felony disenfranchisement law.

The complaint relays disturbing stories of people with past felony convictions that have been denied the right to vote, several of which Cohen effectively summarizes in this piece. One plaintiff, for example, had voted in 2008 and 2012 but the county in which she had registered recently withdrew her right to vote because of her 1997 theft conviction--a crime for which she received no prison time. 

Felon disenfrachisement laws rely on dubious reasoning to begin with, but granting local election officials such broad authority to determine the degree of "moral turpitude" involved in a particular crime invites ridiculous determinations like those alleged in the complaint. Alabama should get rid of its disenfranchisement law toot sweet, but failing that the legislature should at least come up with a list of crimes to which the state's constitutional standard ought to apply.

"Turnout, Tenuousness, and Getting Results in Section 2 Vote Denial Claims"

The title of this post comes from this forthcoming paper by Professor Pamela Karlan, the abstract of which states:

In recent years, courts have been called on to adjudicate a new series of cases involving vote denial — practices that prevent individuals from casting a ballot or having that ballot counted. The upsurge in cases claiming vote denial (as opposed to vote dilution) is the product of a confluence of forces. The Voting Rights Act’s preclearance regime, which had significantly prevented new forms of vote denial in covered jurisdictions effectively disappeared after the Supreme Court’s 2013 decision in Shelby County v. Holder. And increased partisan polarization, combined with politicians’ views about the relationship between turnout and election results led Republican-dominated legislatures to impose new restrictions and to cut back on expansions previously implemented by Democrats.

How should courts analyze these claims under the Voting Rights Act? Recently, the courts have appeals have begun to coalesce on a two-part framework: First, the challenged practice “must impose a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’” Second, “that burden ‘must in part be caused by or linked to “social and historical conditions” that have or currently produce discrimination against members of the protected class.’” But they continue to recognize that their inquiry must be shaped by the statute’s totality of the circumstances requirement and show be informed by a series of factors laid out by the Supreme Court and Congress in the context of vote dilution claims.

This article explores how those factors should work in vote denial cases. First, neither an actual nor a predicted decrease in minority turnout should serve as a necessary precondition to a section 2 results claim alleging vote denial. There are theoretical, doctrinal, and practical reasons for treating election results as a relatively minor consideration with respect to the discriminatory burden prong of the emerging framework. If anything, data or predictions about turnout effects are more relevant to the question whether the challenged practice is tainted by an impermissible purpose than they are to determining the existence of a discriminatory burden.

Second, courts in section 2 vote-denial cases should be guided by the Voting Rights Act’s overall commitment to expanding the opportunity for minority citizens to participate in the political process. Particularly when confronted with a challenge involving a provision that reduces preexisting opportunities to vote, courts should not hesitate to find that the new provision constitutes a “burden” under the emerging framework. Giving evidentiary weight to the existence of a change does not impermissibly import the retrogression standard of section 5 into section 2.

Third, whether the policy underlying the challenged practice is “tenuous” (the final Senate Report factor) of necessity plays a more central role in vote denial cases than it has in vote dilution cases. This does not transform the results test into a purpose inquiry; rather, it is a question of the fit between the policy and the burden. The strength of the government’s proffered policy justifications goes to the heart of whether the practice imposes a burden and whether that burden is discriminatory. More particularly, in vote denial cases, partisan motivations, regardless of whether they rise to the level of an independent constitutional violation or suffice to prove a racially discriminatory purpose, are tenuous as a matter of law and should impose a burden of justification on a defendant jurisdiction.

"How Eighteen-Year-Olds Got the Vote"

The title of this post comes from this recent legal history paper by Professor Jenny Diamond Cheng, the abstract of which states:

Recent legal challenges to state voter ID laws have raised pressing questions about the correct interpretation of the constitutional amendment that guarantees eighteen-year-olds the right to vote. The Twenty-sixth Amendment, which was ratified in 1971, lowered the minimum voting age from twenty-one to eighteen. This Article offers a new, urgently needed comprehensive political history of the amendment's origins. Drawing on exhaustive primary source research, the piece traces the story of eighteen-year-old voting from World War II to the present and demonstrates that the story of eighteen-year-old voting is far more complicated that is commonly thought. This Article argues that the motives and rationales both for and against eighteen-year-old voting shifted over time and were always deeply embedded in their particular historical moments. As such, the history of the Twenty-sixth Amendment poses a challenge to those who would look to original intent to interpret it.

"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. 

Virginia governor extends right to vote to former felons

Virginia Governor Terry McAuliffe (D) issued an executive order today extending the right to vote to felons who have completed their sentences and parole or probation, as The NYTimes's Sheryl Gay Stolberg and Erik Eckholm report here. The entire article is worth reading, but here are a few excerpts:

The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole or probation to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.

 

Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons...

 

Friday’s shift in Virginia is part of a national trend toward restoring voter rights to felons, based in part on the hope that it will aid former prisoners’ re-entry into society. Over the last two decades about 20 states have acted to ease their restrictions, according to the Brennan Center for Justice at New York University.

 

Only two states — Maine and Vermont — have no voting restrictions on felons.

 

Virginia has been one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions, a lifetime ban on voting for felons. The Sentencing Project says one in five African-Americans in Virginia cannot vote...

 

Prof. A. E. Dick Howard of the University of Virginia School of Law, the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once...

 

The governor’s action Friday will not apply to felons released in the future; his aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover people as they are released.

"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.”

"The Right to Vote: Is the Amendment Game Worth the Candle?"

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

Is it possible to be in favor of a constitutional vote and against amending the Constitution to add it? Yes. This paper argues that the amendment game is not worth the candle. There are two stages for ensuring a robust right to vote: amending the Constitution, and enforcing that amendment. As to the first stage, if an amendment enshrining the right to vote looks anything like its cognates in the Constitution, it will be thinly described, maddeningly vague, and pushed forward by self-interested politicians. If the amendment takes this form, the benefits reformers and academics assert we’ll reap are anything but automatic. Once a vague guarantee is embedded in the Constitution (Stage 1), reformers will still have to turn to legislators and courts to get something done (Stage 2). 

 

Making the text more concrete may make Stage 2 easier, but it will complicate efforts to pass the amendment in the first place. After all, if it were easy to enfranchise former felons or block voter ID rules or guarantee a well-administered election system or end partisan gerrymandering, we would presumably have done it already. It’s possible, of course, that reformers could aim for something more than vague language, either by writing their aims explicitly into the text or creating an amendment history so robust that everyone understands what the right embodies. On this view, reformers would build a big tent of supporters by linking the amendment to lots of different reforms. The problem with this strategy is that it will also generate a big tent on the other side. Push for felon enfranchisement, and you’ll run up against the tough-on-crime lobby. Tempt progressives with a ban on voter ID and lose the support of many Republicans. Promise to end gerrymandering and lose the support of most incumbents. That’s why a vague textual guarantee is so tempting an option in Stage 1, even if it creates more work for Stage 2. For these reasons, it makes more sense to pour political resources into more discrete reform projects going forward.

"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.

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.

"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.

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."

"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:

"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.

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 

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.

"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.

"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.

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.

'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.

'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.

'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

"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.

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

"(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

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

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.

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.

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.   

CRL&P related posts:

• 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

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.

CRL&P related posts:

• 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
• Facebook "like" and First Amendment protection for the right to vote

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.

 

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.