Civil Rights Law & Policy Blog

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

Here.

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]

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:

 

"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.

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.

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

The NAACP fears that it will. 

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

 

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

 

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

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

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

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

 

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

 

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

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

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

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

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

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

 

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

 

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

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?

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

Attorneys seek three clarifications to North Carolina's new voting laws

Here's the story:

Election law attorneys at Bailey & Dixon in Raleigh have petitioned the State Board of Elections seeking the adoption of three rules clarifying new voting laws approved by the Republican-controlled General Assembly, including the photo identification requirement, The Insider reports.

Under one proposed rule, a voter's name on his or her photo ID wouldn't have to match exactly the name on the voter's registration record. The rule gives examples of when the two names might not match, yet the voter should be able to cast a ballot anyway. They include abbreviations of a name, such as "John R. Doe" instead of "John Robert Doe;" alternate spellings of names, such as "Thomas Jimenez" instead of "Tomas Jimenez;" use of a common nickname, such as "Becky" or "Becca" instead of "Rebecca;" use of an uncommon nickname, such as "Tim Belk" instead of "Thomas M. Belk Jr." and use of a maiden name or hyphenated maiden-married name, such as "Jane Smith" instead of "Jane Doe" or "Jane Smith-Doe" instead of "Jane Doe."

A second rule would allow a voter to cast a ballot if addresses on the photo ID and voter's registration don't match. "The purpose of the photo identification requirement is proof of identity and not proof of address," the proposed rule states. The first two rules were proposed to establish guidelines and prevent election officials, "through overzealousness or misunderstanding," from ruling an ID invalid if there is an explainable difference between names or addresses, according to the comments filed with the proposed rules by attorney William Gilkeson Jr. The ID requirement takes effect Jan. 1, 2016.

A third rule would prohibit party observers at the polls from being close enough to a voter to read the voter's ID or listen to the voter's conversation with a precinct official, challenge the voter's right to vote or "otherwise impede or interfere with the voting process or violate the privacy of the voter." The new election law allows political parties in each county to name up to 10 observers who may enter any polling place in that county. The law also allows any voter to challenge another voter in any precinct on Election Day. Those changes take effect Jan. 1. In his comments, Gilkeson wrote that current law specifies that an observer's role is to observe, not to impede the voting process.

Bailey & Dixon attorney Michael Weisel said the attorneys wanted to ensure consistent treatment and interpretation of the new laws across the 100 counties, in part to prevent confusion or chaos at polling places. "All the election law attorneys feel that these are good, common-sense explanations and procedures that reflect what the statute intends and will help facilitate the Election Day process," Weisel said.

It was unclear Thursday if the Board of Elections will consider the proposed rules. Elections Director Kim Strach didn't return a phone call. State Rep. David Lewis, R-Harnett, a main drafter of the new voting laws, also didn't return a call Thursday.

CRL&P Daily Reads: Dec. 16, 2013

Former NSA director says NSA programs have not been abused; NSA's current director misled us; White House says no amnesty for Snowden; NSA officials think maybe they should consider it; NSA's worried Snowden still can do damage; and, 60-Minutes criticized for NSA segment.

Milwaukee police face a civil rights suit alleging officer held gun to a man's head and threatened to kill.

Iowans largely support their voter ID law; and, thousands of senior Texans get voter ID cards with wrong names.

Kansas and Arizona to find out within a month whether they will be able to change federal voter registration forms.

 

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

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.

 

CRL&P Daily Reads: Dec. 8, 2013

Milwaukee to file civil rights complaint against company that lost a flashdrive containing employees' personal information; and, DOE will not file civil rights complaint after a report finds rampant cheating in El Paso schools. 

Virginia officials making preparations for new voter ID law.

Colorado baker must serve same-sex couples, Judge says.

Reason.com highlights three important on-going Second Amendment cases.

RAND Corp. has this cool infograph explaining why prison-based education programs are cost effective.

Virginia Restaurant owner says he can take video of customers using the bathroom.

 

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

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

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

CRL&P related posts:

• Democracy and renewed distrust: Equal protection and the evolving judicial conception of politics
• Remembering Tinker: The right to vote as expressive conduct
• Felon disenfranchisement, political power, and the First Amendment right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Facebook "like" and First Amendment protection for the right to vote
• Atlantic correspondent Ornstein calls for a constitutional right to vote

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

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

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

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

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

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

CRL&P related posts:

• Remembering Tinker: The right to vote as expressive conduct
• Facebook "like" and First Amendment protection for the right to vote
• Felon disenfranchisement, political power, and the First Amendment right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• Should elderly judges be forced to retire?

CRL&P Daily Reads: Dec. 5, 2013

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

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

Support for stricter-gun laws is dropping.

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

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

NSA tracks cell locations worldwide.

 

CRL&P Daily Reads: Dec. 2, 2013

SCOTUS rejects challenge to the ACA's employer mandate as it prepares to hear challenges to ACA's contraceptive coverage mandate.

Think Progress says Texas's voter ID law could produce six-hour delays to vote.

Guardian explores how the pact between the U.S and U.K. led to modern surveillance; and, Glenn Greenwald responds to continued attacks over his release of Snowden's NSA leaks.

Constitutional Law Prof Blog previews oral argument in an upcoming First Amendment case: U.S. v. Apel.

NPR examines 'forgotten' issue of fair housing.

Albaquerque looks to reform its allegedly costly intiative process.

Next LA fire chief will have to deal with legacy of race and sex discrimination.

SCOTUS doesn't have enough to do.

 

CRL&P Daily Reads: Dec. 1. 2013

Kansas City Star editorial says electoral reforms should focus on making voting easier for eligible voters; and, The New Republic explains how this might be accomplished.

Guardian columnist explores some of the consequences of the continuing controversy over the NSA's surveillance program.

SCOTUS to decide whether government can prevent some from protesting based on security interests.

Woman wants Mississippi to recognize same-sex marriage so that she can get a divorce; and, lawmaker challenges Hawaii's new law legalizing same-sex marriage in court.

Women still make less than men for the same work.

Americans still don't agree on gun policy; and, man makes a gun made from things available at airports.

NPR explores pilot program that provides public defenders to immigrant detainees.

 

CRL&P Thanksgiving Reads: Nov. 28, 2013

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

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

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

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

 

CRL&P Daily Reads: Nov. 26, 2013

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

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

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

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

Civil rights group updates its app for reporting TSA complaints.

 

CRL&P Daily Reads: Nov. 25, 2013

Texas officials worry that new voter ID law could cause significant problems in higher-turnout elections; and, county officials in Alabama ask for more workers to deal with new voter ID law.

Ohio officials worry that new gun laws could waste taxpayer dollars; and, threatened boycott by hunters opposing Colorado's new gun laws appears to have been only bluster.

NSA director offered to resign over Snowden leak; and, NSA infected thousands of networks with malware.

Excessive force lawsuit costs Los Angeles County $1.6 milliion.

 

CRL&P Daily Reads: Nov. 23, 2013

NSA actually sought to expand surveillance program.

Montgomery Advertiser calls for more ballot access for minor party candidates; PolitiFact calls North Carolina governor's claim that Democrats 'agree' with voter ID law 'mostly false'; and, Plain Dealer column argues that Ohio election reforms should not include photo ID.

Wisconsin Court of Appeals will not block probe into campaign spending and fundraising during this month's elections.

Inmate charged with double murder files a hand written civil rights lawsuit alleging unduly harsh prison conditions and First Amendment violations.

Seattle PD settle a civil rights suit for an illegal search resulting in arrest of ex-felon for illegally possessing a firearm.

Wilmington PD 'stop-and-frisk' policy challenged.

Philadelphia bans 3-D printed guns.

 

CRL&P Daily Reads: Nov. 22, 2013

ACLU sues Kansas Attorney General over state's new election law requiring proof of citizenship to vote; Independent candidate denied ballot access in Alabama's special congressional election; 134 voters in Virginia election couldn't provide proper ID; and, Arkansas's voter ID program is nearly ready.

Some fear Ohio gun bill could limit police stops; Washington voters to choose betweent competing gun policies; Michiganders can now carry guns in state capital's libraries; and Dershowitz and Levinson debate Second Amendment's contemporary usefulness.

Woman files suit against Pittsburgh PD after a repeated sex offender was permitted to remain on the job; store owner files civil rights lawsuit after store's surveillance videos allegedly show racial profiling by police officers; and, civil rights lawsuit against officers in Utah could end up costing the state's taxpayers millions.

Government lawyers return to federal court to defend NSA's mass surveillance of telephone data.

Pennsylvania judge holds status hearing on the challenge to the state's same-sex marriage ban.

Spanish government introduces anti-protest laws.

 

CRL&P Daily Reads: Nov. 21, 2013

Many believe NSA intrusions go too far, and most Americans believe Snowden leaks harmed national security; President Reagan played a role in NSA's development; NSA spies on Britons despite no-spying pact; and, Toomey & Kaufmann argue that the problems with NSA surveillance are the result of too much secrecy.

Wisconsin Supreme Court to hear challenge to voter ID law; proponent of Wisconsin voter ID law claims that people who can't vote just don't care; and, Massachusetts House approves early voting and online registration.

Online impersonators are not protected by the First Amendment, according to the Pennsylvania Supreme Court.

Disgruntled businessman uses newspaper editor's name to direct people to hardcore porn website.

Police use of license plate readers draws criticisms from privacy groups.

Rep. John Lewis speaks about President Kennedy's complicated relationship with civil rights.

 

CRL&P Daily Reads: Nov. 20, 2013

NSA ignored courts on conduct of domestic surveillance; Supreme Court won't hear challenge to NSA domestic surveillance; and, Rep. Sensenbrenner claims NSA's surveillance program threatens America's economy.

Albuquerque voters reject ban on abortions after 20 weeks; and, Supreme Court won't block Texas abortion law that has caused some clinics to close.

Divided Ohio Supreme Court upholds school district's firing of teacher who refused to remove religious materials from his classroom.

Ohio House committee approves new 'stand your ground' law; gun owners in San Fancisco claim city's large-capacity magazine ban violates the Second Amendment; and, Ohio city looks to repeal several gun laws after legal challenge by gun-rights advocates.

Christian Science Monitor explains how voter ID laws affected 2013 elections; PolitiFact Texas labels claims that no problems resulted from state's new voter ID law 'mostly false'; and women are more likely to be disenfranchised under North Carolina's new voter ID law.

Iowa city required to release records from closed meetings.

Juveniles file a federal lawsuit against Florida county and private prison contractor alleging extremely harsh conditions and overuse of pepper spray.

Governor expected to sign Illinois's law legalizing same-sex marriage later today.

Iowa woman wrongfully terminated for alleging workplace discrimination wants her job back.

 

Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere

The title of this post come from Professor Richard Hasen's upcoming article arguing that federal courts ought to use a more exacting analysis of voting laws disproportionately affecting one party's voters. Here's the abstract:

North Carolina, Texas, and other states with Republican legislatures have passed a series of laws making it harder for voters to register and to vote. In response, the United States Department of Justice has sued these states, claiming that the laws violate portions of the Voting Rights Act protecting minority voters. When party and race coincide as they did in 1900 and they do today, it is hard to separate racial and partisan intent and effect. Today, white voters in the South are overwhelmingly Republican and, in some of the Southern states, are less likely to be willing to vote for a Black candidate than are white voters in the rest of the country. The Democratic Party supports a left leaning platform that includes more social assistance to the poor and higher taxes. Some Republicans view such plans as aiding racial minorities.

Given the overlap of considerations of race and considerations of party, when a Republican legislature like North Carolina’s passes a law making it harder for some voters to vote, is that a law about party politics or a law about race? As I explain, if courts call this a law about party politics and view it through the lens of partisan competition, then the law is more likely to stand, and the fight over it will be waged at the ballot box. If the courts call this a law about race and view it through the lens of the struggle over race and voting rights, then the law is more likely to fall and the fight will be settled primarily in the courts. 

The race versus party bifurcation is unhelpful, and the solution to these new battles over election rules — what I call "The Voting Wars" — is going to have to come from the federal courts. Courts should apply a more rigorous standard to review arguably discriminatory voting laws. When a legislature passes an election administration law (outside the redistricting context) discriminating against a party’s voters or otherwise burdening voters, that fact should not be a defense. Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context). These rules will both discourage party power grabs and protect voting rights of minority voters. In short, this new rule will inhibit discrimination on the basis of both race and party, and protect all voters from unnecessary burdens on the right to vote.

CRL&P related posts:

• Facebook "like" and First Amendment protection for the right to vote
• Felon disenfranchisement, political power, and the First Amendment right to vote
• The Atlantic calls for a constitutional right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote

CRL&P Daily Reads: Nov. 19, 2013

FISA court order permitting NSA's surveillance of Americans' email and internet data released; The Week reports on NSA's efforts to minimize data collected on Americans; NSA releases documents showing it vowed to correct surveillance mistakes; and Yahoo seeks to protect users from surveillance.

Stop-and-frisk by NYPD down over last few months.

Pennsylvania woman files a civil rights lawsuit after a police officer offered her legal breaks for sexual favors.

Illegal immigrants don't vote in Arizona; Tennessee Supreme Court upholds new voter ID law; and, The Christian Science Monitor asks whether voter ID laws represent a war on the Greatest Generation.

Former lawmaker files civil rights lawsuit alleging that officers ignored his legislative immunity when they charged him with domestic violence.

United Methodist jury convicts a pastor for performing son's marriage to male partner; same-sex couples married outside Missouri now can file joint tax returns there; and, Cardinal denounces Illinois's new law legalizing same-sex marriage.

Albuquerque voters decide today whether to ban abortions after 20 weeks; vote could represent new front in fight over abortion rights.

Dallas reviews ban on protests within 75 feet of highways.

 

CRL&P Daily Reads: Nov. 18, 2013

SCOTUS will not hear privacy group's challenge to NSA's collection of telephone information from Verizon customers; however, two lower courts will hear challenges to NSA's program; and, The New Republic explains how German support for granting asylum to Snowden could have an impact in NYC.

Federal judge schedules case over Texas's voter ID law for September 2014; another federal judge hears closing arguments in the case over Wisconsin's voter ID law; Alabama's voter ID law will be enforced; and the Atlanta Daily World says black voting rights are at a crossroads.

Muslim woman files a civil rights lawsuit alleging that co-workers at The New School in NYC harassed and discriminated against her.

Iowa Supreme Court decides to allow a man wrongfully convicted of sexual abuse to proceed with his wrongful imprisonment claim.

Texas school district will allow a picture in the school's yearbook of a transgender teen dressed in a tuxedo.

Cheney sisters spar over same-sex marriage on Facebook.

 

CRL&P Daily Reads: Nov. 17, 2013

Support stalled for Sen. Gillibrand's bill providing sexual assault victims in the military reporting alternatives outside the chain of command; she will seek a floor vote on the bill.

Churches join the NAACP's lawsuit challenging North Carolina's new election laws limiting early voting and same-day registration; and Wisconsin Republicans seek to end weekend voting, while the Wisconsin Assembly passes a new voter ID bill.

United Methodist Church prosecutes Pennsylvania pastor under church law for performing same-sex marriage for his son and his son's partner; and, Wyoming Senate candidate Liz Chaney explains her opposition to same-sex marriage.

Obama issues memo haulting deportation of undocumented military families.

NYC Mayor-elect de Blasio meets with NYPD commissioner Kelly, who recently criticized Democrats for opposition NYPD's stop-and-frisk policy.

Protester files civil rights lawsuit against City of Newark, California for false arrest and alleges First Amendment violations.

In Spain, topless women interrupt anti-abortion rally with chants of 'Abortion is sacred.'

 

Election officials testify in voter ID case

The title of this post comes from this article detailing the difficulty of training election officials when implementing new voting laws. Specifically, the article notes one official's testimony in a federal hearing on Wisconsin's new voter ID law discussing the difficulty of administering election laws in a state that delegates election administration to local officials. The article begins:

One of the biggest challenges in rolling out Wisconsin’s 2011 photo voter ID law was training the state’s unusually large number of election clerks, a top elections official testified Thursday during a federal hearing over the stalled law.

Kevin Kennedy, the head of the state’s Government Accountability Board, said there were about 1,850 clerks in Wisconsin at the time the law was passed. That’s one-sixth the number of clerks in the entire nation, he noted.

An attorney asked Kennedy whether it was difficult to train so many workers on the details of the new law.

“It’s never an easy process,” he said, shaking his head.

Wisconsin is one of a handful of states that administers its elections at the local level, Reid Magney, a Government Accountability Board spokesman, told The Associated Press. Many states run elections at the county level, but Wisconsin defers control to the state’s 1,852 cities, towns and villages.

That means the state elections board has to train all 1,852 clerks, who then instruct 30,000 poll workers, Magney said.

 

CRL&P Daily Reads: Nov. 8, 2013

Texas's voter ID law challenged in a new lawsuit in federal court, and spending on ballot initiatives is going through the roof.

Guns & Ammo editor resigns after publishing editorial supporting firearm regulations; Florida legislators decline proposal repealing state's stand-your-ground law; and Gifford's gun-control group establishes a sister organization for veterans.

Illinois Gov. Pat Quinn will sign bill legalizing same-sex marriage on November 20, 2013, and four Idaho couples sue state over same-sex marriage ban. The Week explains why House Republicans have an interest in supporting ENDA.

Sen. Graham has introduced a new anti-abortion bill that would ban abortions after 20 weeks.

Thousands of NYC voters may not have known that the city's ballot had to be flipped over.

 

CRL&P Daily Reads: Nov. 5, 2013

Illinois House takes up gay marriage bill, and the U.S. Senate prepares to pass ENDA.

California children apparently see nothing wrong with gay marriage.

U.S. Senate takes up bill to provide more protection for sexual assualt victims in the military; The Atlantic says "[silent] epidemic" of domestic abuse in same-sex relationships requires more research; and The Week considers the utility and advisability of wearing anti-rape underwear.

TX Attorney General sues EEOC because the agency's hiring guidelines allegedly prohibit the state from denying certain jobs to former felons.

Excited dispute over TX voter ID law erupts at local county court.

Reuter's columnist laments GOP's continued efforts to block federal judicial appointments.

 

CRL&P Daily Reads: Nov. 5, 2013

Happy Election Day!

Turnout might be low, but there are some exciting ballot measures to watch around the country.

PA voters might think they need photo ID in order to vote today, but a state judge has stayed the PA voter ID law until the court has a chance to resolve a recent challenge to its constitutionality by the ACLU. The ACLU also has challenged the constitutionality of the WI voter ID law. In TX, a former U.S House Speaker was denied a voter ID card.

DOJ announced yesterday that it will monitor some Nov. 5 elections in MI, NY, and OH to ensure compliance with Voting Rights Act.

Parents of the 13-year-old boy killed by a sheriff's deputy while carrying a plastic gun have filed a civil rights lawsuit against the county.

New study finds that the cost of hospital treatment for firearm-related injuries exceeds $2 billion.

Sharpton demands assurances from Macy's CEO that racial profiling will not be a problem during the holiday season.

 

CRL&P Daily Reads: Nov. 1, 2013

Pro Publica breaks down the effects of the Supreme Court's decision in Shelby County v. Holder.

ABC breaks down the legal case surrounding Texas's abortion law, while a third of the state's clinics close down.

At University of North Texas, students sign petitions to get rape-kit access.

Gay rights groups protesting the movie adaptation of a book written by author who opposes same-sex marriage, and a Hawaii lawmaker receives a death threat for supporting same-sex marriage.

Iowa governor rejects clemency for eight female prisoners.

NPR asks whether race affects stand your ground laws.

 

Atlantic correspondent Ornstein calls for a constitutional right to vote

CRL&P has noted several arguments for considering the right to vote as protected First Amendment speech.

Voting was done publicly until the end of the 19th century, and open voting changes the nature of the expression. Viva voce voting, for example, required voters to announce their votes publicly, and this declaration had persuasive value. The most respected citizens voted first, and thus candidates sought their support in order to influence voters down the line.

George Washington played this game in order to win his first election. In The Varieties of Political Experience in Eighteenth-Century America, Professor Richard Beeman explains:

Voting in Virginia was conducted viva voce, so the assembled freeholders (and candidates) were able to watch the course of the election as it unfolded...

As the balloting proceeded, it was apparent to all assembled at the courthouse that virtually all of the men of influence in the county had swung their support to Washington... The strategy of marshalling a prominent display of support early in the election was, at least in this case, highly successful, as Washington raced to an early lead that only grew as the day wore on.

Ultimately, the question is whether voting communicates an idea. Even ignoring the context of voting in small rural communities, the expressive value of viva voce voting is at least as expressive as some forms of protected First Amendment political speech (e.g. flag burning, political yard signs, etc.) Further, as Justice Thomas observed in his dissent in Nixon v. Shrink Missouri Gov't PAC, "[I]t is up to the citizens...to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade." 528 U.S. 377, 420 (2000).

Today, The Atlantic calls for a constitutional amendment for the right to vote:

It is becoming increasingly obvious that the Supreme Court decision in Shelby County v. Holder, which eviscerated the Voting Rights Act, is leading to a new era of voter suppression that parallels the pre-1960s era—this time affecting not just African-Americans but also Hispanic-Americans, women, and students, among others.

The reasoning employed by Chief Justice John Roberts in Shelby County—that Section 5 of the act was such a spectacular success that it is no longer necessary—was the equivalent of taking down speed cameras and traffic lights and removing speed limits from a dangerous intersection because they had combined to reduce accidents and traffic deaths.

In North Carolina, a post-Shelby County law not only includes one of the most restrictive and punitive voter-ID laws anywhere but also restricts early voting, eliminates same-day voting registration, ends pre-registration for 16- and 17-year-olds, and bans many provisional ballots. Whatever flimsy voter-fraud excuse exists for requiring voter ID disappears when it comes to these other obstacles to voting

In Texas, the law could require voters to travel as much as 250 miles to obtain an acceptable voter ID—and it allows a concealed-weapon permit, but not a student ID, as proof of identity for voting. Moreover, the law and the regulations to implement it, we are now learning, will create huge impediments for women who have married or divorced and have voter IDs and driver's licenses that reflect maiden or married names that do not exactly match. It raises similar problems for Mexican-Americans who use combinations of mothers' and fathers' names.

In a recent election on constitutional issues, a female Texas District Court judge, Sandra Watts, who has voted for 49 years in the state, was challenged in the same courthouse where she presides; to overcome the challenge, she will have to jump through hoops and possibly pay for a copy of her marriage license, an effective poll tax on women.

The Justice Department is challenging both laws, but through a much more cumbersome and rarely successful provision of the Voting Rights Act that is still in force. It cannot prevent these laws and others implemented by state and local jurisdictions, many of which will take effect below the radar and will not be challenged because of the expense and difficulty of litigation.

Continue reading

CRL&P Daily Reads: Oct. 30, 2013

Arizona Sheriff Joe Arpaio wants to employ 'one or two' drones in surveillance of Pheonix area.

NPR says Texas voter-ID law is unexpectedly making voting difficult for some women.

Support growing in the Senate for Employment Anti-Discrimination Act (ENDA) banning workplace discrimination on the basis of sexual orientation or gender identity, and an Ohio funeral home wants gay marriages recognized on death certificates.

Planned Parenthood says Iowa ban on telemedicine system used for dispensing abortion pills prevents rural access to needed medical services and asks judge to suspend the ban.

Egyptian military tribunal sentences a journalist to one year in prison for allegedly impersonating a military officer.

CRL&P Daily Read: Oct. 28, 2013

Sen. Paul believes abortion and scientific research might lead to eugenics, and a Texas judge finds certain limitations on abortion unconstitutional.

Sen. Reid says Senate will vote on bill to ban workplace discrimination on the basis of sexual orientation or gender identity by Thanksgiving.

DOJ will not prosecute guards from private prison for alleged criminal civil rights violations.

J. Posner: "The point I was making in my book in mentioning the Crawford case was not that the decision was right or wrong[.]"

All new FBI agents ordered to visit the Martin Luther King, Jr. Memorial to remind them of past abuses by the FBI and of their commitment to better practices in the present and future.

 

Voter ID and the floundering right to vote

Yesterday, Slate contributor Dalia Lithwick pointed out that available data used to prognosticate the likely outcomes of new voter ID laws is outdated, and that it is no more clear that Democratic women will be disenfranchised than Republican women. Lithwick's focus on the effect of voter ID laws is necessary, but the problem with voter ID is judicial rather than legislative. The problem isn't whether voter ID laws will disenfranchise Democratic or Republican voters. The problem is that the laws disenfranchise voters. Period.

Voter ID laws have grown in popularity since the Supreme Court's decision in Crawford v. Marion County. In that case, the Court balanced the justification for the Indiana voter ID law against the burden on the right to vote. Liberal and conservative justices united to limit the right to vote, holding that the burden placed on that right was effectively de minimis and that states had a super important interest in preventing fraud (a decision which has been the subject of new interest following J. Posner's recent guilty plea regarding his part in validating the law as the author of the Court of Appeals' opinion).

But, the decision placed the burden of proof on the wrong party--the people. States should always have the burden of showing that regulations that infringe on even a small number of voters actually addresses a real threat or need. Otherwise, how "fundamental" is the right to vote, really? Under this standard, politicians need virtually no reason to manipulate the electorate to their advantage. Any regulation that has as its goal the "purity of the ballot box" is valid. Indeed, fraud becomes the catchall justification for infringing on the individual right to vote.

More robust protection for the right to vote is needed. A simple step would be to require strict scrutiny for all laws aimed at the rights of voters to cast ballots (which could easily be achieved by recognizing the right to vote as First Amendment political speech). This change would not affect states' ability to create laws addressing election issues, it would just prevent them from creating those issues to justify those laws.

CRL&P Daily Reads: Oct. 24, 2013

Texas voter ID law could cause problems for newly married or divorced women, although Slate observes that there is very little data to support claims of either side.

Civil rights group seeks meeting with Barney's CEO to discuss racial profiling allegations made by two shoppers who had been detained following expensive purchases.

ACLU files lawsuit to compel Missouri to disclose supplier of execution drugs.

BLT notes that federal court judge declined to dismiss former legal secretary's pregancy discrimination against firm.

Michael Steele discusses the institutional obstacles faced by HBCUs.

Michigan Gov. Rick Snyder dodges questions about his stance on extending civil rights to LGBT community.