Human Rights at Home Blog

Hope

By Prof. Margaret Drew

Hope came in the form of a Wisconsin election. “Liberal” candidate Janet Protasiewicz won a seat on the Supreme Court, defeating “conservative” Daniel Kelly. This election determined the balance of the court. Crucial human rights issues will come before the Wisconsin Supreme Court, including abortion rights, voting rights, and gerrymandering. After a year of consistent defeats for the rights of women, people of color, and the poor, progressives hope for Supreme Court decisions that recognize the fundamental human rights of the litigants coming before them.

I am not a fan of labels. One cannot always predict how a labeled individual will behave. I prefer to know whether an individual appreciates and understands fundamental human rights. In this instance, those celebrating this victory do so with the hope that basic human rights will be the overriding principle of the court’s agenda.

We have passed through concerning times. Hope has not always been a close companion during this time, but a necessary one. For me, this election is a sign of hope. How nice that it arrived in early spring, along with the flowers and the birds. Here we have it!

“Hope” is the thing with feathers -

That perches in the soul -

And sings the tune without the words -

And never stops - at all

            E. Dickenson

 

New Article: I Exist, Therefore I Should Vote: Political Human Rights, Voter Suppression and Undermining Democracy in the U.S.

Davita S. Glasberg, William T. Armaline, Bandan Purkayastha, I Exist, Therefore I Should Vote: Political Human Rights, Voter Suppression and Undermining Democracy in the U.S., Societies Without Borders, Volume 16 Issue 1 (2022). Abstract below.

The right to vote is clearly delineated among the rights identified in the Universal Declaration of Human Rights, and the US has long held itself as the beacon of that democracy and enfranchisement. Yet, a long history persists of practices and policies of voter suppression and gerrymandering that targets the rights of Black, brown, and indigenous populations in the US, a history that has in recent years escalated. We use the framework of the Human Rights Enterprise to unpack this history and to explore why efforts of voter suppression are intensifying at this particular moment in history.

Peaceful Protest Hotline

Clashes with angry people are expected to rise in the short term due to increased emotions around the Presidential election.  Just in case Trump supporters attempting to drive the Biden Bus off the road is a portent, know that there is a hotline you can call.  Organized and operated by Hofstra's Law Reform Clinic.   The critical information for Voting Day and during the weeks to follow is that protestors, including those engaged in peaceful protests, will be referred to criminal and civil rigths lawyers for representation.  

The clinic will serve legal observers, and military service members that might question the legitimacy of orders that cocerning responses to demonstrators.

The clinic opens November 2nd and depending upon need will run until March 1. 2021.

The website indicates that "Servicemembers, Conscientious Objectors, and Protesters can call the Hotline at 516-463-5935 between 6:00 PM and midnight Eastern Time any night of the week. All calls are strictly confidential."

 

 

 

The Case for Felon Voting Rights

Prof. Margaret Drew introduces UMass Law Student Abigaelle A. Ngamboma

In Raysor v. DeSantis, a federal trial court in Florida struck down a state law that required persons formerly incarcerated for felonies to pay all court fees and costs before voting. This was cause for celebration until the state appealed the decision and the US. Court of Appeals for the 11^th circuit ordered a stay to the trial court ruling until the appeals proceed. The appeal was met with protest and citizens urged the Supreme Court to uphold the trial court’s ruling, especially in lieu of an upcoming presidential election. The Supreme Court denied the citizens outcry, upholding the stay. This means that at this time, Floridians with a felony record cannot vote until they have paid their court costs, fines, fees, or any restitution.

Allowing persons formerly incarcerated for felonies to vote will increase the population of citizens who can participate in the democratic system. This is especially relevant because research shows that the close margin 2000 presidential election could have been altered had voting rights been extended to the disenfranchised in Florida.

There are various arguments against the constitutionality of disenfranchising those with felony records, such as the violation of the 15^th amendment’s protection against voter denial on account of race, color, or previous condition of servitude, and that of the 24^th amendment’s protection against the need to pay a poll tax or other tax before voting in any primary election. While opponents argue that requirement to pay of fees is a part of the punishment, the financial hurdle limits the right to vote to the wealthy.

For example, felonies in Florida are classified in five different categories, and the court weighs various factors in determining which crimes are violent and nonviolent, such as the examining the nature of the offender’s primary offense, and if there was a victim who suffered injury. Instead of requiring the payment of fees before voting, the right to vote should be automatically restored upon the release of persons with nonviolent felony records, and those convicted with violent felonies should receive the right to vote after a statutorily set time. The statutory set time will serve as a grace period to examine improvement in the offender's character and reintegration in society.

The right to vote is one of the most fundamental rights that is granted to citizens of the United States. Although it is not inscribed in the U.S. constitution, it remains an expression of the freedom of choice and an opportunity to participate in the much-lauded democratic process. For the nonincarcerated persons with felony records in the U.S., the barriers and laws that are enacted to keep them from the voting ballots affect not only social dynamics, but political policies as well. Many States have shifted from permanent disenfranchisement to a more liberal stance, such as granting automatic approval upon release with certain condition and applying for a certificate of eligibility. Nevertheless, the U.S. is not a trailblazer in this area compared to other democratic countries, like Denmark, Canada, and Spain, where people charged with felonies can vote in prison. As of now, the U.S. only has two states that allow persons with felony records to automatically vote upon release, with no conditions attached. To this day, the concept of punishing individuals for their past illegal conduct is so ingrained in the criminal justice system that the concept follows individuals even when they have served their time and interferes with their ability to re-enter society as participating citizens.

The ultimate goal is not to encourage a lax stance on crime nor belittle the harm caused by the criminal conduct. It is about protecting the practice of a fundamental right from depending on the payment of a burdening fee and to not extend punishment to the point of permanent incapacitation.

Honoring Black Women Suffrage Leaders

Women's national right to vote is 100 years old.  Those women who led and supported the movement to change the law so that women could vote were brave.  Katy Cady Stanton,Susan B. Anthony, Lucy Stone, Alice Paul and Margaret Fuller are the names most Americans associate with the suffrage movement.  Who can name the leading Black women who promoted suffrage?

Only with BLM has the general white populace become aware of Black women's leadership in the suffrage movement.  This week brought articles on Black women who not only advanced suffrage but did so effectively.  The New York Times this week included information on how black women, including Ida B. Wells, documented the Black suffrage movement through photography.  Black suffrage organizers argued that racism and sexism could not be separated.   Today's BLM women recognize that intersectionality as the #Say Her Name movement represents. 

For a time, Alice Paul was persuaded by racists who felt that Southern women would not support Northern suffrage movement if Black women were permitted to march with White women.  The Guardian wrote about this choice in describing an incident documented in PBS' "The Vote". Once again racism was permitted to influence decision making, which only postponed US reckoning with race.  While ultimately Alice Paul agreed that Black women would not march separately, her initial opposition and continued failure to give equal status to the Black leaders caused harm.

Some of the many Black suffrage leaders' names to remember:  Ida B. Wells, Mary Church Terrell, May Howard Jackson, Harriet Gibbs Marshall, Drs. Amanda Gray and Eva Walsh, Anna Evans Murray, Georgia Simpson, Harriet Shad, Lulie Niles Fisher, Lucretia A. Freeman, Minnie Gaines, Florence Henderson, Nettie Johnson, and Carrie Clifford.  #SayTheirNames. 

 

 

 

 

Biden-Harris and BLM and Saving Democracy

Much excitement has greeted Mr. Biden's announcement that his vice-presidential running mate is Senator Kamala Harris.

The selection of a Black, female running mate is a consequence of and a response to the Black Lives Matter movement.  Harris is not without her controversy, particularly on issues of mass incarceration and prosecutorial rigidity.  During her prosecutorial and Attorney General days  she opposed release of incarcerated people proved innocent.  Then after their release she opposed awarding the compensation to the exonerees.   Law and order was one of her signature policies.  Both Biden and Harris will have difficulty distancing themselves from the players who maintained (and in Biden's case built) the carceral state.

That said, Senator Harris brings high energy to the campaign and she brings self-confidence and a commitment to helping the most desperate during the current health crisis.  She knows how Congress works and is a good match for the bad boys of Congress. Her inquiries at the Kavanaugh hearings revealed her understanding of issues that impact women.  And her parental heritage ensures her understanding of multiple cultures.

How exciting it would be if our first female president is a woman of color.  The vice-presidency could set her up well for a  presidential run.

No candidate will meet all needs.  But as the authors of How Democracies Die reminds us, in order to defeat an autocrat it is only necessary that opposition groups unite behind the alternative candidate. Whatever disagreements anti-autocrats may have with the alternate candidate are unimportant.  Unification to defeat the autocrat is imperative to the survival of a democratic state. Everything else can be dealt with later.  The 2020 election is our turning point.  Post-election we either struggle on as a democracy or we bid farewell to the Republic and acknowledge the solidification of the US as an authoritarian state.

Who Votes?

The Constitution's failure to acknowledge full voting rights in black men and all women, has had long lasting repercussions.  The founders ignoring the fundamental rights of more than half of the population produced devastating results that extend into this decade.  Active voter suppression efforts are taken to prevent people of color from voting.  Threats of arrest for voter fraud, and other acts of intimidation are not only common but are effective.  One of the most insidious deprivations of voting rights  is denying the right to vote to those who are incarcerated for felonies and for newly returning citizens.  Maine and Vermont do not deprive those convicted of felonies of the right to vote, even while incarcerated. This is not so in  other states..                                      

In 2016, Crystal Mason of Texas voted in the presidential election.  She had no idea that she was not permitted to vote while on probation.  And certainly no one from the state, including her probation officer, ever told her she could not vote while still doing community service.  Ms. Mason, who is African-American, was recently sentenced to five years in prison.  Being both female and a woman of color, Ms. Mason is just the sort of individual that the founders never intended to enfranchise. The resulting avoidance by the drafters connects to present voting disruptions in a direct line.

A majority of states permit returning citizens to vote.  Before someone you know who was formerly incarcerated  participates in voting, it would be helpful for them to check and learn who is permitted to vote and when voting may resume in the jurisdiction of residence.  One helpful resource may be found here.  

Alabama Election: Let’s Stop Focusing on the Women

Since the election of Doug Jones  as Alabama's junior senator, much has been written about women voters and their role in the election.  I fear that this attention is perpetuating stereotypes about women and reinforcing cultural traditions of holding women to standards different from men.  

Mercifully, Moore was not elected.  But this has not stopped criticism of his white women supporters.  Yes- the majority of white female voters in Alabama voted for Roy Moore. Interestingly, black voters supported Jones in an overwhelming amount (95-96%).  Black women supported Jones at a slightly higher (but statistically insignificant) rate (98%) than black men.  There is no doubt that the black vote was crucial to the Jones victory.

Equally important was Alabama's Senator Shelby's acknowledgement that he intended to vote for a write-in and not Moore.  Approximately 22,000 Republican voters followed Shelby's lead and wrote in a name that was not Moore's.  Those write-in ballots nearly matched the number of votes by which Jones won the election.  That vote was equally crucial to the Jones election.

With so many critical confluences merging to elect the democratic candidate, why are white women being vilified?

68% of white voters supported Moore. 58% of white, college-educated women voted for Moore as opposed to 43% of college graduates overall.  72% of white men voted for Moore. Yet little, if anything, is being written about the men .  The majority of women who voted for Moore identify as evangelicals.  The majority of white women who did not vote for Moore do not identify as evangelicals, yet the focus on religious differences driving the white female vote is under-discussed.

Black men supported Jones at nearly the same rate as black women. Shouldn't we be thanking black men as much as the women?  White men supported Moore at a higher rate than did white women.  But I have read nothing focusing on the white male voters. 

I posit that the focus on women raises notions of patrimony, this time being promoted by as many women as men.   The focus implies that women are held to a higher moral standard than men and that women alone carry the burden of ensuring pedophiles and other dangerous men are not elected.  Granted, more women than men are victims of sexual harassment and assault which may create a faulty presumption that no women will support a man with a demonstrated history of assaulting women.  But when we raise our expectations that all women will vote as a block, we remove individual autonomy from our Alabama sisters.  Also, we perpetuate what male culture has done to women for centuries - we hold different expectations of women than men under the guise of morality.

Equality ought to mean that women can make as many flawed decisions as men.  Autonomy means that women are free to make their own decisions, even if we disagree with those decisions.

And above all, the social critics should be mindful that this tactic of dividing different groups of women has been used successfully by men for centuries.  Turning the women against each other in their and the public's minds has prevented women from joining together when they do find common ground. 

There is no need to separate out the black female vote when their vote was not very different from the votes of black men.  The only reason for doing is to contrast the black female vote for Jones with the white female vote for Moore.  Thus is the path of dividing and demonizing women.  

Stunned Silent?

The Presidential election results will test our courage as human rights advocates.   While we may be stunned at the result and the consequences for marginalized groups, we cannot afford to stay silent long.

At the same time, we need a national conversation on strategy that incorporates enhanced safety planning for advocates.  We cannot afford to remain silent, but we must be prepared to support those advocates who suffer adverse consequences of speaking out.

Make History!

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Straight-Ticket Voting - The Latest Voting Rights Challenge

Straight-ticket voting is the latest voting practice to come before the US Supreme Court.  When a voter uses the straight ticket, one check mark  results in a vote for all of the candidates for that party on the ballot .  Many states have eliminated this practice and Michigan sought to do the same, despite the fact that the practice has been in place for over 100 years.   The Michigan legislature voted  to eliminate the practice but a federal district court refused to invalidate it.

The State argued race neutrality as the type of voting applies to all voters.  The opposition claims that 65-76% of African American Michigan voters use straight-ticket voting.  The opposition also said, that unlike other states, Michigan does not offer early voting and absentee voting is permitted only when certain criteria are met.  The opposition concluded that  elimination of straight-ticket voting would result in long lines if eliminated so close to the election.  SCOTUS declined to hear the case.  Michigan had asked for a quick decision so that it could begin printing absentee ballots.  More information regarding this petition may be found at SCOTUS Blog.

 

The Election Countdown: Update on SCOTUS and Voting Restriction Cases

Earlier this blog reported that several federal courts had struck down voting law provisions that attempted to restrict voting.  Two of the states involved were North Carolina and Ohio.  This week the US Supreme Court refused to hear an appeal by North Carolina that would permit that state to enforce its provision that would require voters to have a government issued id in order to exercise voting rights. 

Ohio Democrats filed an emergency appeal seeking the court's order that Ohio's "Golden Week" be reinstated. As summarized by SCOTUS Blog's Amy Howe: 

"The state implemented Golden Week in the wake of the 2004 presidential elections, when many voters encountered long lines at the polls that resulted in waits of up to twelve hours to vote. Ohio Democrats say that Golden Week “made a major contribution in alleviating congested voting lines and encouraging turnout” – especially for African Americans, who may face more challenges, because of constraints on their time and resources, in voting on Election Day itself."

Golden week was instituted following the 2004 election when voters had to wait in lines often up to 12 hours to vote.  The delays had a disparate impact on African Americans, who constitute a large percentage of the population of the bell-weather Hamilton County. 

Last Friday, Justice Kagan asked the State of Ohio to respond to the Democrats' emergency appeal by this Thursday, September 8. 

 

 

While You Were Away... Federal Human Rights Cases

July and August saw several states’ voting restrictions overturned.  The voter ID laws, which would have required voters to produce photo identification prior to voting, were struck down.  North Dakota’s law was the most recent, but other states, including Wisconsin, Kansas and Texas saw portions of their voting laws struck as discriminating against people of color.   Earlier, Ohio passed legislation that eliminated “Golden Week” the voters’ rights to register and vote at the same location.  Ohio has a history of attempts to limit voting by minorities and others who tend to favor the Democratic Party.   In May, a federal court declared that the legislation violates the Voting Rights Act as well as the 14^th Amendment. 

A different federal court (4th Circuit) declared a North Carolina Voter ID law unconstitutional on several grounds.  Like Ohio, North Carolina had eliminated same day registration and voting. But NC also prohibited out of precinct voting, as well as early voting.  Both of these restrictions were overturned as well.  The court found that the provisions “target African-Americans with almost surgical precision.” The court noted that the legislation addressed fictional problems.  

In what was a surprise to many, the Supreme Court stopped implementation of a federal appeals court order that would have blocked the Virginia law requiring students to use the bathroom of the sex assigned at birth and not in accordance with their gender identity.  The case is Gloucester County School Board v. GG.   The surprise was Justice Breyer’s vote to grant the stay pending filing and decision on a petition for cert.  He described this action as a “courtesy”.  (And that means?)  We can hope that the Justice promotes this issue being fully briefed in order to settle critical issues of gender identity, knowing that a split court will leave the lower court decision intact.  Assuming the application for cert is granted, this case will test the limits of Justice Kennedy’s empathy toward the sexually diverse.  Perhaps Justice Kennedy will extend his animus-dignity analysis to this minority that has far fewer champions than do gays and lesbians.

Evenwel v. Abbott - Coming Together to Support Fundamental Rights

Everyone has the right to recognition everywhere as a person before the law. 

Everyone has the right to take part in the government of his country, directly or

through freely chosen representatives.

These familiar words are reflected in Articles Six and Twenty One of the Universal Declaration of Human Rights. This week, the US Supreme Court considered how states organize voting districts and who is included in the population that will form the basis of voting districts.   Following Shelby v Holder, many were concerned that the efforts to exclude minorities and immigrants from voting access would be successful.   There is reason to be concerned, as some states have closed voting locations, manipulated voting districts and taken other measures  or attempted measures that effectively limit the ability to vote.  

Counterbalancing some voter restriction efforts, on Monday the US Supreme Court announced its opinion in Evenwel v. Abbott, affirming one person, one vote triggering a collective sigh of relief for human rights advocates.   The controversy was Texas' anticipated implementation of a rule that only voting eligible individuals would be counted in determining population in organizing a voting district.  The effect of this formula would have been to enhance the voting power of rural areas because the population counted in urban areas would be diminished through the elimination of non-citizens, children, those formerly incarcerated for felony convictions, and others who do not have status to vote.  Since urban areas reflect larger populations of groups whose members do not vote, the political influence of cities (and minorities and other groups) would diminish.

 In a unanimous opinion authored by Justice Ginsburg, and in which Justices Alito and Thomas concurred, the Court rejected the conservative challenge to ‘one person-one vote’ -

“What constitutional history and our prior decisions strongly suggest, settled practice confirms. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.” 

Creating an originalist bridge that connected a range of legal interpretive philosophies, Justice Ginsburg wrote “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”

The Court failed to address, or hint at, formulae that it would approve for population counting, although most states use census based ones.  But in keeping the decision narrow and reaffirming the fundamental one person-one vote principle, the court achieved unanimity.  And that was a much needed expression of the court's ability to work together when fundamental human and civil rights are in play.  I can think of another branch of government that could learn from the judiciary.

The New and Not So Subtle Threat To Your Right to Vote

by JoAnn Kamuf Ward, Columbia Human Rights Institute 

The right to vote is under threat in the United States.  Gone are the days of asking individuals to count grains of sand in a jar in order to register, or the days when you had to recite the Declaration of Independence, or have a grandfather who voted.  Today, the tactics used to keep people away from the polls are harder to spot, but their impact is no less pernicious. 

We need to restore the protections of the Voting Rights Act, as civil and human rights advocates have been arguing.  We need to look, too, at the disparate impact of policies that don’t, on their face, seem to be directly about voting and recognize them for what they are.  

 Alabama illustrates the problem, though it is surely not alone.  On the heels of the Shelby decision that gutted key provisions of the Voting Rights Act, the State Legislature passed a law that requires all voters to have a photo identification.  Then, last month, Alabama decided to close 31 offices that issue driver licenses.  The Governor has claimed that these laws are about smarter budgeting in a time of limited funding, and that there is still sufficient access to photo IDs.   Advocates counter that these laws and policies are designed precisely to restrict the vote.  

Of course, what really matters here are the consequences.  The result of the closings is that in Alabama counties with a majority of non-white voters, you cannot get a driver’s license where you once could.  This is bad news for Alabamans as a whole, but its impact will most likely be felt most in the poorest communities, communities of color.  

You can’t look at closings of license bureaus in isolation.  You must consider the fact that since Shelby, Alabama has raised the cost of renewing licenses, compounding the problem of access.  In a state where the median income of African Americans households hovers around less than 60 percent of the household income for white families, price increases represent a deterrent to accessing the identification needed to realize the right to participate. 

The bottom line is that regardless of intent, the result will be a disparate impact on communities of color.  The possibility for yet another lawsuit challenging voting laws in Alabama is likely.  The potential outcome is unclear given the state of current voting laws and their enforcement regime.   Alabama Representative Terri Sewell has called for a DOJ investigation into Alabama’s DMV closings and that request is pending. 

Yet, if there were a different legal paradigm at play – one premised on government’s obligations to ensure basic civil and human rights – Alabama would have to take a new approach.  A rights-based approach puts the onus on government to look not only at budgetary needs, but at the overall context of decision-making.  

In Alabama this includes looking at all the factors that impede access to voting together.  These include cost, location, and other theoretically neutral policies with a disparate impact on communities of color, such as reduced polling hours. Alabama’s history of segregation and past gerrymandering efforts would be pertinent too.  The starting point of the conversation would be:  Do Alabama’s laws and policies curtail basic rights? Do they foster equality and address discrimination?  And under this paradigm, federal, state, and local policy would have to aim to affirmatively secure the right to meaningful participation for all on an equal basis.  They would have to improve access, not curtail it.  

 Some cities, like New York, have started down a path that could offer a course correction to address the challenge of obtaining identification through the NYC ID Card for all.  This is important because 23 million citizens that are otherwise eligible to vote lack sufficient photo ID. In Alabama, its estimated that a quarter of a million people don’t have access to adequate photo identification. 

To ensuring meaningful access to the ballot much further reaching, structural changes, are needed at the state and federal level.  This includes a framework to explicitly address voter suppression efforts.  States like California and Oregon have already taken proactive steps to increase the rate of voter registration.  Hilary Clinton recently offered her own prescription, after observing that “Alabama is living a blast through the Jim Crow past.”

So many have fought with their lives to protect the right to participate.  The ongoing threats to the right to vote and to have a voice in the political arena are an affront to democracy, and to fundamental human rights.    These threats are not only in Alabama, they are across the country.

Where Would You Draw the (District) Line?

by JoAnn Kamuf Ward, Human Rights Institute, Columbia Law School

The U.S. prides itself on free and fair elections.  Indeed, the Constitution and federal law guarantee equality in voting: the “one person, one vote” standard was enunciated by the Supreme Court in the 1960s as a means to address vastly skewed voting power resulting from districts with unequal populations.

This simple phrase – “one person, one vote” – belies the complex nature of elections in the United States.  In order to foster the idea that each person’s vote counts in our at large system, federal elections districts drawn “as mathematically equal as possible,” while state and local districts are supposed to be drawn through an “honest and good faith effort” to ensure equal populations. (The ACLU has explained these standards and the underlying case law here).  But, in the majority of states, districting falls to legislators (in others, districting commissions have authority to draw districts).  That means in most jurisdictions, those who are in charge of districting are individuals with a vested interest in maintaining power.  This system is one rife with potential for abuse. 

 Indeed, it has led to rampant gerrymandering.  In general, gerrymandering is the act of altering political boundaries with the intent to impact election outcomes.  Perhaps the most well-known form of gerrymandering is racial.  Indeed, the Voting Rights Act was developed to prevent the dilution of minority votes – yet its protections are unfortunately being chipped away.  Another variation is partisan gerrymandering, i.e., the “practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.”  This slicing and dicing of districts to protect a particular party or favor a particular candidate is another way that districting curtails truly free and fair elections.

 While much seems at stake, the Supreme Court has been reticent to step in to curtail these practices.  Indeed, last year’s decision in Shelby v. Holder struck down some protections of the Voting Rights Act that address racially discriminatory gerrymandering.  In the arena of partisan gerrymandering, the Supreme Court more or less thrown up its hands over a decade ago.  In 2004, a plurality decision by Justice Scalia opined that there is “no judicially discernible and manageable standards” to adjudicate claims of partisan gerrymandering.  This means that presently there is little recourse for those whose votes, and voices, are marginalized by partisan line drawing. 

 So, what can be done?  Advocates are taking these concerns to the international human rights community to put pressure on the United States to ensure elections are truly representative.  The relevant human rights protections are strongly worded.  The Universal Declaration of Human Rights enshrines the right to “take part in the government of his country, directly or through freely chosen representatives” and guarantees a fundamental cornerstone of democracy, that “[t]he will of the people shall be the basis of the authority of government; [as] expressed in periodic and genuine elections.”  The International Covenant on Civil and Political Rights echoes these protections and the Race Convention further guarantees the right to vote.

 In its recent review of the United States’ human rights record, the CERD Committee expressed concern about the “obstacles faced by individuals belonging to racial and ethnic minorities and indigenous peoples to effectively exercise their right to vote, due inter alia to restrictive voter identification laws, district gerrymandering, and state-level felon disenfranchisement laws.”  The Committee called for federal legislation to address discriminatory impact of voting regulations, voting rights for felons and DC residents and efforts to ensure indigenous peoples can effectively exercise the vote. 

 There are ongoing legislative efforts to address some of these concerns, including passage of the Voting Rights Amendment Act of 2014.  Placing districting power in the hands of independent bodies rather than legislators is another proposal reform.  Another recommendation to address partisan gerrymandering is removing discretion altogether and utilizing computer models to generate district maps.

 Yet, it is unclear whether current legislative reforms or judicial intervention can truly foster compliance with human rights norms within our current winner take all election system (also known as “first past the post”).  More drastic steps may be necessary to ensure the will of the people is the basis of the government and representatives are freely chosen.

 Alternatives to “winner take all” models do exist.  They are employed in countries around the world, as well as in some U.S. jurisdictions.  One is Ranked Choice Voting, or Alternative Voting (AV), which is used in Cambridge, MA, San Francisco, CA and Australia.  Another is Mixed Member Proportional Representation, the means for choosing representatives in Germany, New Zealand and others.   These videos offer an introduction to Alternative Voting and Proportional Representation

 What solutions would you propose?

 

"Selma"

by Gay McDougall, Distinguished Scholar-in-Residence, Fordham Law School, guest contributor

The recently released film “Selma” attempts a deep-dive inquiry into one of the most pivotal series of events in modern American history.  The movie is both ambitious and focused.  In a little over two hours, it recalls the aspirations, courage and irrational brutality of an era that was so recent but yet nearly forgotten.

I remember. 

Martin Luther King Jr. and his family lived around the corner from my home in the segregated Black neighborhood of Atlanta. Rev. Abernathy’s church was nearby and the SNCC (Student Non-violent Coordinating Committee) headquarters was not far away.  The 1954 Supreme Court decision in the case of Brown vs. Board of Education and the Montgomery Bus boycott and other events that were rippling across our fields of dreams had given us all a sense that freedom was rising.  But white resistance was fierce.  

By 1965, when the events in the film took place, our forces for racial justice had achieved some sizable gains. There was the 1963 March on Washington, the 1964 Civil Rights Act and the well-publicized desegregation of a number of universities across the South. But can you believe that we were still being blocked from voting?  Throughout the South the reality was that every trick imaginable was used to deny our 14th Amendment right to be full and equal citizens. And it was all backed up by violence. In 1964 three civil rights workers were killed in Mississippi while on a project to register African Americans to vote.  

In "Selma," Ava DuVernay directed an account of the fight for voting rights that depicts the many personal and political currents that are always elements of transformative human dramas. While there was only space and time to make quick references to many of those currents, the film does not dumb-down or flatten out the complexities. ML King’s Southern Christian Leadership Conference’s (SCLC) “ high-visibility” approach to making change was compared to SNCC’s preference for long-term community organizing. There was reference to the tensions between King and Malcolm X.  Thank God Diane Nash was finally given her due; many histories of those times leave her and other women leaders out. The Reverends Bevel and Hosea Williams were represented and there was a nod to Andrew Young’s more cautious tendencies.  Tim Roth was marvelous as George Wallace.  Cuba Gooding Jr., playing the lawyer Fred Gray, represented the role played in the events by the NAACP Legal Defense Fund and King’s insistence that the measures taken be legal. 

And, yes, the depiction of President Lyndon Johnson’s reluctance to present the Voting Rights Bill to Congress in advance of his anti-poverty initiatives has been criticized by some as not reflecting accurately his high level of support for civil rights.

But what was more important to me, personally, was that when the camera focused closely on the face of Jimmie Lee Jackson’s 82 year old grandfather after his grandson—both of whom were active participants in the Selma protest–was murdered by a State Trooper, I saw a reflection of my father’s face and that of so many Black men of that era that I had known.  These were men who had been denied every dream they had ever had.  They knew pain, deep as wells.  And they were still standing.  DuVernay got that right.  Her story was about these people.  So, any slight to LBJ’s reputation can be corrected later by history.  

Related articles

Ava DuVernay Responds to Criticisms of LBJ in "Selma"