Democracy and Voting

  • April 11, 2016
    Guest Post

    by Emmet J. Bondurant and Kathay Feng

    Emmet J. Bondurant authored the Common Cause amicus brief with Jeremy D. Farris in Evenwel v. Abbott and argued the landmark redistricting case Wesberry v. Sanders before the U.S. Supreme Court in 1963. In Wesberry, the Supreme Court definitively established that the Constitution requires congressional districts be drawn counting all people.

    Kathay Feng is Common Cause’s National Redistricting Director and heads up their California operations, where she successfully championed the state’s adoption of a Citizens Redistricting Commission to draw state and congressional districts through a transparent and inclusive process.

    Last Monday morning, the entire community of voting rights advocates breathed a sigh of relief. The U.S. Supreme Court issued an 8-0 decision in Evenwel v. Abbott, written by Justice Ruth Bader Ginsberg, upholding the standard state practice of counting all people for purposes of conducting state redistricting.

    A little primer first: At the start of each decade, the Census Bureau conducts a count of every American – where they live, how many people are in a household, and basic demographic information about them. This Census data is crucial for a number of things that happen right after: We allocate the number of representatives to the Congress from each state using these numbers, we redraw the congressional districts based on this total count, AND states use these numbers to redraw the lines for the state legislative districts. The goal has always been to make sure the districts have equal numbers of people in them so the people elected to represent the districts are serving the same number of people.

    In Evenwel, two plaintiffs from Texas asked the Supreme Court to reinterpret fundamental principles of our democracy by drawing lines based on voters only, and making invisible millions of our family, friends, and neighbors who are not voters. The Court rejected this approach, unanimously holding that states may use census data counting total population to draw districts. Common Cause’s amicus brief laid out why the Supreme Court had to reject Evenwel’s argument:

    “It would [] create an indefensible situation in which states would be required by Article I, Section 2 to use total population as the basis for the redistricting of congressional districts, but be prohibited by the Equal Protection Clause from using the same standard when redistricting state legislative districts. Finally, it would break the structural link between the right of every person to equal protection under the laws enacted by the state legislature and the right of every person subject to those laws to equal representation in the houses of that legislature.”

  • March 25, 2016
    BookTalk
    Engines of Liberty
    The Power of Citizen Activists to Make Constitutional Law
    By: 
    David Cole

    by David Cole, Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown Law

    President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.

    More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.

    Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.

    Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.

  • February 23, 2016
    Guest Post

    by Harry Baumgarten, Inaugural Partner Legal Fellow at the Voting Rights Institute

    This post originally appeared on the blog of the Campaign Legal Center.

    Members of the U.S. Senate and House of Representatives will gather tomorrow to award the foot soldiers of Bloody Sunday, Turnaround Tuesday and the final Selma to Montgomery March with the Congressional Gold Medal. This award constitutes the highest civilian honor bestowed by Congress and marks a fitting tribute to the brave men and women who risked life and limb so that “every American citizen would be able to exercise their constitutional right to vote and have their voices heard.”

    Yet, however befitting and overdue this award may be, we must not accept it as a substitute for meaningful legislative action to safeguard the fundamental right to vote.

    Minority voting rights are perhaps more imperiled today than at any time since these brave marchers gathered at the Edmund Pettus Bridge in 1965. Just three years ago, the U.S. Supreme Court gutted a key provision of the Voting Rights Act, despite four reauthorizations and thousands of pages of congressional findings that showcased why the law was still needed. The 2013 decision, Shelby County v. Holder, dismantled the VRA’s coverage formula, which determined which states and local jurisdictions were required to gain approval from the Department of Justice or a federal court before making changes to their electoral laws and procedures due to histories of racial discrimination in voting.

    Many of the states that would have once needed to seek preclearance from the DOJ acted within hours of the Supreme Court’s ruling, implementing onerous voting restrictions, such as voter ID laws, that had the intent and effect of burdening minority access to the polls. These laws threaten to disenfranchise millions of people across the country and would previously have been barred by the Voting Rights Act. Scarily, without congressional action, 2016 will likely mark the first presidential election in more than 50 years without the full protections of the Voting Rights Act.

  • January 28, 2016
    BookTalk
    When Money Talks
    The High Price of "Free" Speech and the Selling of Democracy
    By: 
    Derek Cressman

    by Derek Cressman, a longtime reform advocate and architect of anti-Citizens United voter instruction measures in California, Colorado and Montana.

    Common sense tells us that if money is equivalent to political speech, then that speech is not free. But contemporary campaign finance jurisprudence presumes that paid advertisements, which can indeed disseminate political speech, deserve identical First Amendment protections as the free press. Supreme Court rulings such as Buckley v. Valeo, Citizens United v. FEC, and McCutcheon v. FEC have undone post-Watergate reforms to limit big money in politics and have given a small group of billionaires an outsized role in deciding who runs for office, who wins elections, and what issues dominate our political discourse.

    I wrote When Money Talks: The High Price of “Free” Speech and the Selling of Democracy in order to draw a bright line between paid speech (which is funded by the speaker and foisted on the listener unsolicited) and free speech (which is sought out and usually paid for by the listener when she buys a newspaper, for example). It’s an instruction manual intended to equip citizens with arguments and an assortment of tools to overturn Supreme Court rulings in Citizens United and related cases. It eschews legalese for plain talk, but includes plenty of arguments that lawyers, academics, and advocates will find provocative.

    Once the line is drawn between paid and free speech, some constitutional protections for paid speech remain – as Justice Stevens has eloquently explained. So while we may limit the amount of money anyone spends on paid speech, we may not ban it entirely and must justify the limits with a compelling public interest.

    Legal scholars have long debated the extent to which preventing corruption or promoting equality justify some restrictions on paid speech. I offer a third interest: the wisdom of the crowd. For both voters and legislators to make wise decisions about public policy, we need robust but also balanced information from opposing viewpoints.

  • January 21, 2016
    Guest Post

    by Ron Fein, Legal Director, Free Speech for People

    Six years after the Supreme Court’s Citizens United v. FEC decision, it’s time for campaign finance reformers to move from defense to offense—in the courts.

    Since Citizens United struck down limits on corporate and union political spending, the Court has further chipped away at federal and state campaign finance laws in areas such as per-person overall contribution limits and effective public financing in elections with big-money candidates. These decisions have led to a growing popular movement to amend the Constitution to overturn Citizens United and the doctrines that led to it. They have also led to a florescence of innovative thinking from scholars and advocates on money in politics, corporations, and democracy.

    We have the foundation for a new jurisprudence ready for courts to adopt. And we have evidence of how big money in politics causes real harm to Americans’ wallets, justice system, environment, and even quality standards for children’s surgery.

    Now it’s time to move away from a position of indefinite defense, where James Bopp sets the legal agenda. It’s time to develop game-changing affirmative impact litigation challenging the role of big money in politics. It’s time to stop being amici in support of defendants and start being plaintiffs.

    Of course, we should be strategic in identifying the most likely avenues for success in the medium term. One area is state judicial elections, where the campaign finance reform position has won twice in a row at the Supreme Court, in cases stemming ultimately from concerns about judicial impartiality. Professors Erwin Chemerinsky and James Sample have argued that the due process implications of campaign spending in judicial elections justify a constitutional analysis quite different from legislative and executive elections.

    Another promising area involves challenging super PACs, the contribution-limit-evading mechanisms created by SpeechNow.org v. FEC, a D.C. Circuit decision that moved well beyond what the Court actually decided in Citizens United. Professors Laurence Tribe and Albert Alschuler have argued that the Supreme Court may be ready to overrule the court of appeals even while holding fast to Citizens United. Finally, we need to think beyond federal court and develop innovative cases based on state constitutions.