Thursday, February 18, 2021

“Preservative of All Other Rights”: Voting and Social Justice in the Post-Trump Era

As social justice advocates rejoice over Donald Trump’s defeat and look for paths forward, the biggest lesson comes from the 2020 presidential election itself.  The right to vote is “preservative of all other rights[,]” and this past year underscored its importance more than ever.  In the midst of the COVID-19 pandemic, high voter turnout—and especially high Black voter turnout—propelled Joe Biden to victory.  Even as the Electoral College and partisan gerrymandering continue to undermine the popular will, America’s changing demographics favor people of color and progressives.  Moreover, the elected branches of government have become more significant because Trump packed the federal judiciary with conservative judges.  Social justice advocates should not expect too many revolutionary legal rulings such as Brown v. Board of Education (1954).  Most progressive change for the next generation will begin at the ballot box rather than the courthouse.

There are many barriers to expanding the franchise.  With its ruling in in Shelby v. Holder (2013), the U.S. Supreme Court greatly compromised the Voting Rights Act of 1965 (VRA).  Section 5 of VRA requires the covered jurisdictions to gain preclearance: federal authorization before enacting any laws that affect voting qualifications or procedures.  The covered jurisdictions included states and localities with a particularly egregious history of discrimination in voting.  Section 4 of VRA contained the coverage formula for Section 5, setting the criteria for preclearance to be applicable.  The Court ruled that the coverage formula in Section 4 was unconstitutional because Congress had not updated it since 1975.  Although the Court did not rule on the constitutionality of Section 5, its holding eliminated preclearance, allowing previously covered jurisdictions to enact restrictive voting laws. [1]

States have passed restrictions on the franchise, especially through purging of voter rolls and requiring voter identification.  Through its ruling in Husted v. A. Phillip Randolph Institute (2018), the Supreme Court made it easier for localities to remove registered voters from their rolls.  And even before Shelby, the Supreme Court had upheld strict voter ID laws in Crawford v. Marion County Election Board (2008), citing the state’s interest in preventing voter fraud.  The Court made reference to voter ID provisions in the National Voter Registration Act of 1993 and the Help America Vote Act of 2002, although Congress intended these laws to make voting easier.  With Trump’s numerous, baseless accusations of voter fraud in the 2020 presidential election, the climate is set for conservative state legislatures to pass more restrictions on voting. 

Nevertheless, the state of Georgia provides hope and vision for social justice advocates.  Georgia’s voter registration law is the most stringent in the nation, mandating an exact match of all required documents.  Georgia also has a strict photo identification requirement at the polls.  An ACLU report from September 2020 found that Georgia had wrongfully removed 200,000 voters from its voting rolls.  But in spite of these restrictions, Georgia voters—especially Black voters—turned out in huge numbers, lifting Joe Biden to victory in the state.  Biden became the first Democratic presidential candidate to win Georgia since 1992, and only the third since 1960. Turnout for the Georgia Senate runoffs in January was also excellent, leading Democrats Raphael Warnock and John Ossoff to surprising victories.

Former Georgia House Minority Leader and 2018 gubernatorial candidate Stacey Abrams deserves the most credit here.  Abrams, who believed that voter suppression cost her the 2018 gubernatorial race, founded Fair Fight Action—an organization which fights voter suppression.  Abrams and Far Fight Action were extremely effective in registering and turning out Georgia voters.  They serve as a model for stopping voter suppression and increasing the franchise.  And this is particularly important in Georgia, as it becomes a swing state and eventually a Democratic-leaning state.  Similar political trends have begun in other Southern states, such as North Carolina and Texas.  Social justice advocates in these states should follow Stacey Abrams’ lead.

There have also been other positive developments for voting rights.  Although some states have made voting more difficult in particular ways, the polls have become more accessible in other ways.  An increasing number of states now have automatic voter registrationForty-two states allow some form of early voting, and 35 have either automatic or “no excuse” absentee voting.  States do vary in the level of authentication required for absentee and mail-in ballots, and progressives should work to ensure that voters are not disenfranchised for minor errors.  In the wake of Trump’s baseless claims, social justice advocates will also need to continue fighting for liberal registration and mail-in/absentee ballot laws. Additionally, advocates should ensure that there are a sufficient number of accessible polling places in all jurisdictions.

Advocates should also capitalize on growing support to end felon disenfranchisement.  Forty-one states allow all felons to have their voting rights restored, and 48 allow this for at least some felons.  In 2018, Florida voters approved, by a 2:1 margin, an amendment to the Florida Constitution that restored voting rights for most felons when they completed their sentences.  Soon thereafter, the Florida legislature made this standard more difficult to meet by including payment of fines and fees as part of a “sentence.”  Nevertheless, Florida does illustrate that even in states which have recently favored Republicans, restoration of felon voting rights can gain traction among the electorate.

Voting technology can also affect the franchise.  After the fiasco with Florida’s recounts in the 2000 presidential election [2], the Help America Vote Act of 2002 aimed to modernize voting machines across the nation.  But all of its goals have not been met, and many states still use old voting machines.  Modernization of voting technology across jurisdictions is another important undertaking to ensure that votes are properly cast and counted.

Finally, although conservative judges now dominate the federal courts, social justice advocates can still look to state courts.  Historically, state supreme courts, including some from traditionally conservative states, have rendered groundbreaking rulings on issues ranging from school desegregation to same-sex marriage to education funding.  Voting rights are no exception: even as the U.S. Supreme Court continues to rule that partisan gerrymandering is non-justiciable, state high courts in Pennsylvania and North Carolina struck down gerrymandered districts on state constitutional grounds.  With a conservative federal judiciary in place for many years, state courts provide an alternative judicial venue to increase the franchise.

Social justice advocates have always needed to be flexible in their approaches.  It will take a combination of political engagement, impact litigation, direct action, and voter education and enthusiasm to expand voting for marginalized groups in our society.  And while this will not be an easy undertaking, it is the first step in securing all other basic rights.


[1] Although Congress could still make new findings and use that evidence to create a new coverage formula, this would be difficult to accomplish in the current political climate.  Moreover, the Supreme Court also noted in Shelby that Section 5 raises federalism issues.  With its new conservative appointees, the Court could rule that Section 5 itself is unconstitutional.

[2] In Bush v. Gore (2000), the U.S. Supreme Court halted the Florida recounts on equal protection grounds, due to the variation in recounting standards used by different localities.  Although the Supreme Court’s ruling was widely critiqued on federalism grounds, seven Justices and many commentators agreed that there were equal protection problems with the recounts.

This essay was originally published in Civil Rights Insider 5 (Winter 2021).

February 18, 2021 | Permalink | Comments (0)

Saturday, February 6, 2021

Colloquium: Defund to Abolish


While the killing of George Floyd inspired worldwide protests against police brutality, it has also inspired discussions about how best to seize the opportunity to reform the police. The New York University Review of Law and Social Change will be hosting a gathering to continue these discussions. You are invited to join this two day gathering, which features a stellar lineup of scholars, advocates, and activists. The panels will take place in the early evening and include:

Day 1

Defund Means Defund:Panelists will contextualize the current moment, discuss the divide between reformist and abolitionist strategies, and lay out a vision for the future of the movements to defund and abolish the police.

Abolishing Police Across Intersecting Systems: This panel will highlight examples of how policing and criminalization show up in major institutions and industries as varied as technology, education, immigration enforcement, and sex work, and strategies organizers are using to remove police from these systems and spaces.

Day 2

Communities Without Police--We Keep Our Communities Safe:Panelists will share concrete examples of abolitionist strategies for community safety and discuss their vision for community safety systems that do not rely on policing. 

Defunding the Police in Practice:Organizers waging campaigns to defund the police in cities across the U.S. will reflect on different strategies and tactics to defund the police, what barriers they have faced, and what strategies have proved most effective.

You can RSVP at the colloquium's webpage here.

February 6, 2021 | Permalink | Comments (0)

Friday, February 5, 2021

Why Trump Didn't Pardon Himself


Former US President Donald Trump never admits he makes mistakes. That theme is arguably the only consistent aspect of his turbulent four-year presidency. It is also the reason why a self-pardon is unlikely to emerge during his final days in office. A presidential pardon prior to conviction or indictment implies an admission of wrongdoing, which is anathema to Trump’s authoritarian nature and pathology of denialism.

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The president also knows that a self-pardon only grants him immunity from federal prosecution, not state prosecution. Thus, the Manhattan District Attorney’s ongoing investigation of Trump and his family for tax evasion, fraud and financial crimes could still lead to state indictments after the president returns to private life, even if he had pardoned himself.

Indeed, a self-pardon could increase Trump’s exposure in a state prosecution. Because a pardon shields the recipient from prosecution for a federal crime, he cannot invoke the Fifth Amendment right against self-incrimination to avoid being subpoenaed before Congress or a federal grand jury. And if Trump lies, which he has been prone to doing in the past, that would be a new crime which his self-pardon would not cover.

That said, the constitutionality of a president’s authority to self-pardon has never been tested before the courts.

Article II, Section 2 of the US constitution grants the president the authority to “grant reprieves and pardons for offences against the United States, except in cases of impeachment”. A pardon removes the particular criminal act from an individual’s record, thereby shielding them from future criminal liability for that same act.

As far back as President Richard Nixon’s Watergate scandal — which stemmed from attempts to cover up the involvement of his administration in a break-in at the Democratic National Committee headquarters — legal scholars have been debating the constitutionality of a presidential self-pardon without a clear consensus.

Those arguing the legality of self-pardon point to the US Supreme Court opinion in the case of Ex parte Garland, issued in 1866, concluding that the president’s pardon power is unlimited and that: “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.” Moreover, the constitutional check on executive abuse of authority is impeachment by the House of Representatives and trial by the Senate, making restraints on pardoning power unnecessary.

Although the unlimited executive authority to pardon has been reaffirmed in other Supreme Court cases, the facts have always involved presidential pardon of others, not the president himself. Thus, a self-pardon by Trump would be the first of more than 20,000 instances of presidential pardons in the US.

The legal scholars who argue self-pardon contravenes the US constitution emphasize the basic structure of the document bars self-dealing. To allow a president to pardon himself would violate the rule of law principle that one cannot be one’s own judge. Furthermore, as Supreme Court Chief Justice Marshall pointed out in 1833, a pardon is “an act of grace” and mercy toward another. Following this reasoning, a literal interpretation of “grant” is an act between two different people — a grantor and a recipient.

Despite these ongoing disagreements within the legal community, the most likely explanation for the absence of self-pardons is political, not legal. Nixon, who resigned before he could be impeached, would have effectively admitted to an unlawful involvement in the Watergate scandal if he had issued a self-pardon.

Similarly, George H W Bush, who was investigated for his role in the Iran-Contra affair, would have had to admit he played a role in the scandal that led to the conviction of senior members of his administration. A self-pardon would have tarnished Bush’s legacy and let him go down in history as a weak and corrupt leader.

Instead, these presidents either relied on their successors to pardon them, as was the case of Nixon with President Gerald Ford, or not prosecute as in the case of Bush with President Bill Clinton.

This leads us to the most likely reason Trump did not issue a self-pardon — President-elect Joe Biden’s lack of political appetite for more divisiveness. Biden is inheriting a highly polarised country that is still reeling from an attempted insurgency by a mushrooming far-right movement. The same movement constitutes Trump’s political base and rejects the legitimacy of Biden’s electoral victory. Putting their leader on trial would simply feed their conspiracy theories and encourage them to continue glorifying Trump as a white saviour.

The last thing Biden wants as he tries to heal a divided nation and pull the country out of an economic recession is the first-ever criminal trial of a former president who craves nothing more than the media spotlight. A high-profile prosecution would only feed Trump’s narratives of victimhood and “witch hunts” that would twist the disgrace of being impeached (twice) into political gain. Indeed, the siege on the Capitol on January 6 displayed the potency of Trump’s influence in inciting his disaffected constituency toward violence.

But just as Trump refused to acknowledge his incendiary speech endangered our democracy, he did not pardon himself. For that would have required Trump to admit what most Americans already know — that he is a criminal.

— This article was originally published on Al Jazeera here.


February 5, 2021 | Permalink | Comments (0)

Wednesday, February 3, 2021

Biden Administration Drops Investigation of Yale's Race-Conscious Admissions Policies