Democracy and Voting

  • June 17, 2013

    Editor's note: This post has been updated to include comment from UC Davis School of Law Professor Gabriel "Jack" Chin.

    by Jeremy Leaming

    The U.S. Supreme Court voting 7-2 dealt a setback to Arizona’s rigid voter ID law, saying the state’s additional citizenship requirements were preempted by federal elections laws.

    The setback could be seen as a victory of sorts for opponents of state efforts aimed at crafting and implementing more hurdles to voting, ones that disproportionately impact minorities, poor people, the elderly and students. Justice Antonin Scalia’s opinion, however, left the door open for Arizona and other states to try to alter the National Voter Registration Act (NVRA, also known as motor-voter) to impose stricter requirements to vote. 

    In Arizona v. Inter Tribal Council, the majority led by Scalia found that Arizona’s Proposition 200 provision requiring elections officials to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship” must “give way” to the federal form created by the Election Assistance Commission (EAC). The NVRA requires states to “accept and use” that federal form. As Scalia noted, the federal form “does not require documentary evidence of citizenship; rather it requires only that an applicant aver, under penalty of perjury, that he is a citizen.” Scalia was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

    The NVRA and the EAC were created pursuant to the Constitution’s Elections Clause (Article I, Section 4), which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations ….”

    Scalia wrote that the “textual question” in the case centered on whether the NVRA’s requirement that states “accept and use” the federal form preempts Arizona’s state-law requirement that officials reject “the application of a prospective voter who submits a completed Federal Form unaccompanied by documentary evidence of citizenship.”

    Arizona officials argued that its reading of the federal law allowed it to reject a federal form if it failed to include the additional information set out in the state law.

    Scalia said it “is improbable” that the federal law “envisions a completed copy of the form it takes such pains to create as being anything less than ‘valid.’”

    He continued, “States retain the flexibility to design and use their own registration forms, but the Federal Form [created by the EAC]  provides a backstop: No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.”

  • June 14, 2013

    by Jeremy Leaming

    The Supreme Court's right-wing justices have another opportunity to greatly hobble the Voting Rights Act by finding its primary enforcement provision, Section 5, unconstitutional. And the high court is likely to issue its opinion any day now. But U.S. Rep. John Lewis (D-Ga.) at the 2013 ACS National Convention urged progressives to be ready to fight back, to not give up on equality.

    Lewis, a civil rights hero, noted his upbringing in rural Alabama, fifty miles from Montgomery, during an era of Jim Crow, and his inspirations for fighting entrenched racism in an effort to create a more thoughtful and honest country. One where the Constitution's promises of equal protection and due process under the law are met.

    “When I was growing up, I saw those signs that said 'white men, colored men,' and 'white women, colored women.' I would ask my mother, my father, my grandparents, my great grandparents, why? And they would say, 'That's just the way it is. Don't get in the way, don't get in trouble.' But I heard of Rosa Parks, heard the words of Martin Luther King, Jr. on the radio. The action of Rosa Parks, the leadership and words of Dr. King inspired me to get in the way, to get into trouble, good trouble, necessary trouble. And I think it's time for all of us once again to get into trouble, good trouble, necessary trouble.

    “I have a strange feeling in America, at this point in history, we're just a little too quiet,” he continued. “We've come to a point where we almost want to resign, and say this is just the way it is. But it doesn't have to be this way. There are still too many people in our society who have been left out and left behind.”

    Lewis focused on how one might react to the outcome of the Supreme Court's consideration of Shelby County v. Holder, the case challenging the constitutionality of the Voting Rights Act's Section 5 as a heavy-handed federal government intrusion on state sovereignty. Section 5 covers states and towns, mostly in the South, with long histories of keeping minorities away from the polls. The provision provides that those states must obtain preclearance from a federal court in Washington or the DOJ before making changes to their voting laws, including redistricting.

    Even if the high court provides some gloomy news by striking Section 5 or weakening it, Rep. Lewis said there was no need to despair. Instead, liberals and progressives should be prepared to cause a bit of trouble, good trouble, as Rep. Lewis said.

    “We've come to far, we've made too much progress to go back,” Lewis said. “We must move forward. We got the Civil Rights Act in 1964, the Voting Rights Act in 1965. I've always taken the position that the vote is precious. It is the most powerful, nonviolent tool we have in a democratic society, and we must use it.”

    If the high court's right-wing justices successfully gut the Voting Rights Act, Lewis said we must be prepared to “fight the good fight, and never, ever give up.”

    “We must get in the way, we must get in trouble, good trouble; use the law. Use the Constitution, to bring about a non-violent revolution right here in our country. Don't give up, don't give in, our struggle is one that does not last one day or one week, or one year. It is a struggle of a life time, or many life times. We must do what we can, as Dr. King said, to create the beloved community.”

    Getting into trouble, standing in the way of right-wingers beholden to corporate America, and striving to create a smarter country. That sounds as challenging as it is inspiring.

    See Lewis' speech below or click here.

  • April 29, 2013

    by Jeremy Leaming

    North Carolina, which last year voted to amend its constitution to ban same-sex marriages even though it already had a law doing that, is now on the verge on enacting one of the nation’s more onerous voter ID laws. 

    Late last week the N.C. House easily approved the so-called Voter Information Verification Act that would require people to present government-issued voter photo IDs before casting ballots. It is expected to pass the Senate and the State’s Republican Governor Pat McCrory has signaled he’ll sign it into law. Brentin Mock reporting for ColorLines noted that last week’s vote in the lower chamber drew throngs of N.C. university students to protest the new law.  The measure would make it arduous for the state’s colleges and university students to engage in democracy. And other measures being considered, as Mock reports, are also aimed at making voting burdensome, such as limiting early voting and prohibiting all early voting on Sundays.

    The Brennan Center’s Lucy Zhou in an April 25 post about the ongoing state efforts to place more burdens on voting described N.C. as a “hotbed of restrictive voting bills” and listed the array of measures the state is moving to implement. Zhou notes that North Carolina lawmakers are striving to undercut the state constitutional rights of students to vote at their college addresses, by penalizing parents. If students register to vote under a different address, like their university address, parents will be barred from “listing their children as dependents on state tax forms ….”

    State Rep. Thom Tillis (R-Mecklenburg) in a column for The Charlotte Observer called the photo ID bill “common-sense” and likened it to showing a photo ID to board an airplane. The problem with this type of argument is that it misses a fairly significant point. Voting is integral to democracy and indeed is protected in numerous places in the U.S. Constitution. But what about air travel and purchasing cocktails or even certain kinds of decongestants, which also require identification. Those actions may be vital to the pursuit of happiness, but not all are constitutionally protected rights, and certainly not as integral to democracy as voting.

    Tillis claims “fringe elements have relied on heated rhetoric to frame this issue ….”

    There is, however, nothing radical, over-the-top, or wild-eyed about noting the fact that North Carolina lawmakers are not able to point to any in-person voter fraud that has occurred in their state. Instead it is Tillis and his cohorts who are misinforming the public by claiming the integrity of the vote needs to be protected, while offering not a shred of evidence as to when that integrity was compromised.

  • April 23, 2013

    by Jeremy Leaming

    A renowned social justice leader Bob Edgar died today at age 69. Edgar was a U.S. congressman for 12 years, leader of the National Council of Churches and since 2007 the president and CEO of Common Cause. While in Congress, he served on the committee that investigated the assassinations of President John F. Kennedy and Dr. Martin Luther King Jr.

    Edgar, who the Religion News Service’s Adelle M. Banks reports died of a heart attack, was also a “bridge builder.” As head of the National Council of Churches he helped bring together an array of faith groups to advance social justice causes. “Early on,” Banks writes, “Edgar sensed that the venerable ecumenical agency was losing its public voice, and was one of the early supporters of Christian Churches Together in the USA, which brought the NCC’s mainline Protestant, Orthodox and black churches together with evangelicals and Catholics for the first time.”

    U.S. Rep. John Conyers Jr., Ranking Member of the House Judiciary Committee, worked with Edgar during his time in the Congress and noted that he was the “principal co-author of legislation that updated the G.I. bill following the abolition of the draft ….” Edgar, Conyers noted, also served on the Veterans Affairs Committee, where he worked to address concerns over the deployment of Agent Orange during the Vietnam War, and of veterans suffering from post-traumatic stress disorder.”

    Edgar led Common Cause a nonpartisan group devoted to ensuring Congress works efficiently and is accountable to citizens. Last year the group lodged a federal lawsuit against the use of the filibuster, which has been used primarily and with increasing frequency by Republican senators to scuttle judicial nominations and thwart popular legislation, such as modest measures to promote gun safety. Edgar in a press release about the lawsuit said the filibuster had been used to “pretty much shut the place down.” He noted that far too often it would take a supermajority or 60 senators to allow much of any action to occur.

  • March 21, 2013
    Guest Post

    by Gabriel J. Chin, Professor of Law, University of California Davis School of Law

    This week, the Supreme Court heard argument in Arizona v. The Inter Tribal Council of Arizona, a case at the intersection of two lines of cases which have been prominent on the Court’s docket in recent years. The case is an example of a challenge to Arizona’s apparently endless cornucopia of anti-immigrant legislation. It also tests measures which, according to some conservatives, are designed to preserve the integrity of the ballot box, but according to others are calculated to suppress the minority vote.

    The case involves Arizona’s Proposition 200, passed in 2004, which requires prospective Arizona voters to provide proof of United States citizenship before registration. But the federal National Voter Registration Act of 1993 directed the federal Election Assistance Commission to create a federal form for voter registration (current version here). That form requires applicants to provide a date of birth and other identifying information, and an oath that the applicant is a citizen, but does not require independent documentary proof of citizenship.  Federal law requires states to “accept and use” the federal form. The critical question is whether “accept and use” means that a properly completed form is sufficient for voter registration unless the state independently proves that it is fraudulent, or, rather, that the form is the beginning of an application process during which the state may freely add supplemental requirements and inquiries.

    A panel of the U.S. Court of Appeals for the Ninth Circuit, which included retired Justice O’Connor, invalidated Prop. 200’s proof-of-citizenship requirement, over a dissent by Chief Judge Kozinski. En banc, the Ninth Circuit held 9-2 that the requirement was invalid, this time with Chief Judge Kozinski in the majority. Both the panel and the court en banc Circuit upheld a separate provision of Prop. 200, requiring registered voters to show identification at the polls.

    It is common ground that the federal government has broad power over federal elections.  As the Brennan Center and the Constitutional Accountability Center wrote in a brief for me and other constitutional law scholars, under the Elections Clause (Article I, Section 4), Congress may regulate federal elections and supersede state electoral laws. The Framers recognized the national implications of state electoral improprieties, and granted the national government the power to protect itself.  Neither Arizona nor any of the justices questioned the century of precedents to this effect. Instead, the case seemed to turn on the intent of Congress.