Democracy and Voting

  • July 18, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    Practicing the art of the possible rather than seeking perfection may be an inevitable feature of civil rights legislation. Even the greatest and most honored laws have loopholes; the Thirteenth Amendment, for example, allows slavery based on conviction of crime, any crime, and the exception was liberally exploited in the former Confederacy after Redemption. The Fifteenth Amendment seems to countenance discrimination on the basis of sex, and a protection in earlier versions of the right to hold office was stripped out before enactment.        

    Nevertheless, I’ll take them; I do not criticize the Reconstruction Amendments or their makers for being merely as good as was possible at the time. Similarly, it would not have been better to give up what was good in the 1964 Act simply because of its deficiencies. At the same time, recognizing a law’s compromises and gaps is essential to understanding its real import, and to thinking about how policy can be shaped to fully reflect the principle at stake.

    Among the important compromises in the bill are exemptions from the employment discrimination prohibition of Title VII for businesses of less than 15 people, and the exemption from the Public Accommodations provision of Title II for small, owner-occupied motels and lodging establishments. Presumably, these exceptions exist for the benefit of racists who grew up in a racist system through no fault of their own. Congress might reasonably have concluded that forcing close contact between racial minorities and these racists might have been more trouble than it was worth.  But these exemptions should have been time-limited; at this point, all but the oldest business owners spent their entire lives, or at least their adulthoods, in a nation were discrimination has clearly been against the law and public policy. The case for continued compromise of the policy is not obvious.

    Another major gap in the Civil Rights Act is the lack of protection against discrimination of members of the LGBTQ community. Clearly, this was no oversight. The desegregation struggle was to some degree a Cold War propaganda effort. Fair treatment on the basis of race was a “cold war imperative,” and so too was controlling the potentially subversive effects of sexual minorities. Thus, the 1965 Immigration Act, a close cousin of the Civil Rights Act, eliminated discrimination on the basis of race in immigration law, but simultaneously clarified and strengthened a prohibition on gay and lesbian immigration. The Civil Rights Act makes little sense unless it recognizes a fundamental human dignity and equality. The Americans with Disabilities Act and the Age Discrimination in Employment Act closed unjustified gaps in the coverage of the original law, and the prohibition on gay immigration is gone. Continuing to allow discrimination against gays and lesbians in the Civil Rights Act is indefensible.

  • June 3, 2014

     
    The Supreme Court ruled that a Pennsylvania woman who attempted to poison her husband’s mistress cannot be prosecuted under federal law. The justices ruled that the federal ban on chemical weapons does not apply to Carol Anne Bond, whose attempt to poison her victim resulted only in “a minor thumb burn readily treated by rinsing with water.” Lyle Denniston as SCOTUSblog breaks down Bond v. United States.
     
    New voting laws across the country will pose an arduous task for minority voters in the midterm elections. In states like North Carolina and Texas, these restrictions will “disproportionately affect registration and voting by African-Americans as compared with whites.” Fanita Tolson discusses the issue in the Tallahassee Democrat.
     
    Trip Gabriel at The New York Times addresses why democrats in Kentucky are disillusioned by the Obama administrations’ ambitious proposal for regulating power plant emissions.
     
    At Just Security, Marty Lederman examines the Obama administration’s reasons for not waiting “30 days to complete the Bergdahl exchange.” 
     
    At Concurring Opinions, Ronald K.L. Collins provides a “snapshot of the Roberts Court’s record on free expression issues.” 
  • May 5, 2014
    Guest Post
    by Katherine Culliton-González, Senior Attorney, Director of Voter Protection, Advancement Project
     
    On April 29, the federal court of the Eastern District of Wisconsin found that the state’s photo ID law violated the Equal Protection Clause of the Constitution as well as Section 2 of the Voting Rights Act. This decision marked the first time Section 2 has been used to strike down a discriminatory voter ID law, and it shows that the Voting Rights Act still has the power to do so—despite the Supreme Court’s 2013 Shelby County decision eviscerating its preclearance provisions under Section 5.
     
    Advancement Project initiated the Section 2 litigation on behalf of Black and Latino individual plaintiffs and community organizations, including League of United Latin American Citizens (LULAC) of Wisconsin, the Milwaukee Area Labor Council, AFL-CIO, Cross Lutheran Church, and the Wisconsin League of Young Voters. Our pro bono counsel was Arnold & Porter LLP. Our case was consolidated with another suit brought by the ACLU for the purposes of trial last November. By then, our lead plaintiff, Bettye Jones, had unfortunately passed away. 
     
    Ms. Jones was 78 years old and, born at home during a time when hospitals were segregated, lacked the birth certificate needed to get a photo ID. Her daughter testified about the numerous inquiries—inquires which racked up burdensome time and financial costs—that it took to try get her mother an ID so that she could continue voting. After last week’s decision, she told us her mother would have been proud to know that her refusal to be silent made a difference in ensuring that the spirit and intent of the Voting Rights Act of 1965 was preserved in 2014 and beyond. 
     
  • April 28, 2014

    by Jeremy Leaming

    U.S. District Court Judge Paul A. Crotty had no choice – he was bound by recent Supreme Court precedent to strike some New York campaign spending limits. As The New York Times’ David Firestone noted, Judge Crotty’s 5-page opinion and order provided “about as clear-eyed description of the corruption now permeating the political system as anyone has written.”

    Judge Crotty took to task the Supreme Court’s opinions in Citizens United v. FEC and this year’s McCutcheon v. FEC, both of which have only made it easier for the wealthy to control the nation’s elections. (And many have argued that the wealthy have never needed such help. A recent study by Martin Gilens and Benjamin I. Page for Princeton found that “economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while mass-based interest groups and average citizens have little or no independent influence.”)

    In his April 24 opinion and order, Judge Crotty nevertheless had to invalidate some modest limits on spending by independent groups, in this case a group called the New York Progress Protection Pac, which spent heavily in support of Republican Joseph Lhota’s New York City mayoral race. In the process, however, Crotty blasted the Supreme Court’s majority opinions in Citizens United and McCutcheon.

    “In effect” Crotty wrote, “it is only direct bribery – not influence – that the [Supreme] Court views as crossing the line into quid pro quo corruption.” Crotty noted that he believes Justice Stephen Breyer who lodged a dissent in McCutcheon got it right, but that his hands were tied because of the majority opinions in McCutcheon and Citizens United.

    He “who pays the piper calls the tune,” Crotty wrote. “Indeed, today’s reality is that the voices of ‘we the people’ are too often drowned out by the few who have great resources. In today’s never-ending cycle of campaigning and lobbying; lobbying and campaigning, elected officials know where there money is coming from and that it must keep coming if they are to stay in office. Ordinary citizens recognize this; they know what is going on; they know they are not being included. It breeds cynicism and distrust.”

    See Crotty’s full opinion here.

    But beyond evolving Supreme Court precedent that advances interests of the wealthy, Professor Nicholas Carnes writing for TPM Cafe says we also must realize who is crafting policy in Washington -- primarily millionaires.

    “My research suggests,” Carnes writes, “that we have a government for the privileged in the United States in part because we have government by the privileged.” Carnes research shows how rare it is for voters to be able to support candidates from the middle-or-working classes. Typically the voter has a narrow choice, “Do you want to vote for a millionaire lawyer or a millionaire business owner?”

  • April 23, 2014
     
    At The Daily BeastGeoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, discusses his experience on the President’s Review Group on Intelligence and Communications Technologies and why “constant, rigorous, and independent review is essential if we are to strike the proper balance between liberty and security in a changing world.”
     
    The Supreme Court heard oral argument yesterday in a case involving an “Ohio law that criminalizes the spreading of false information about a political candidate during a campaign.”  The challenge comes after an anti-abortion rights group mischaracterized former Rep. Steve Driehaus’ (D-Ohio) stance on abortion during his 2010 reelection campaign. Robert Barnes at The Washington Post has the story.
     
    Yesterday, the Supreme Court upheld Michigan’s ban on Affirmative Action in Schuette v. Coalition to Defend Affirmative Action. Justice Anthony Kennedy wrote for the plurality while Justice Sonia Sotomayor wrote an impassioned dissent. Writing for SCOTUSblog, Amy Howe details the case.
     
    Peter Hardin at GavelGrab notes that if New Jersey Gov. Chris Christie chooses not to reappoint Chief Justice Stuart Rabner it could “give rise to the perception that Christie was attempting to intimidate judges working without tenure.”
     
    At The New Yorker’s Daily Comment Hendrik Hertzberg explains New York Gov. Andrew Cuomo’s decision to join the National Popular Vote (NPV) interstate compact.