Democracy and Voting

  • August 11, 2015
    Guest Post

    by Julie Ebenstein, Staff Attorney, Voting Rights Project, American Civil Liberties Union

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    Just days before the 50th anniversary of the Voting Rights Act, we completed a three-week trial challenging North Carolina’s sweeping anti-voter law. 

    In 2013, soon after the U.S. Supreme Court struck down Section 4 of the Voting Rights Act - and with it, the preclearance protections of Section 5 - North Carolina passed an election law shocking in its lack of a valid purpose and its extensive abridgement of citizens’ right to vote.  The challenged provisions of the law reduced the number of days for early voting, eliminated same-day-registration, and prohibited out-of-precinct Election Day voting.  Cumulatively, the law is one of the most repressive elections bills seen in decades. The law exemplifies a “second generation” barrier to voting.  It created broad, structural impediments to electoral participation, in part on the basis of race, and will likely impact hundreds of thousands of voters in the upcoming presidential election.

    In the pre-2013 world, the law would not likely have survived Section 5 preclearance, and thus, would never have been implemented.  But the absence of Section 5’s protection has created a severe disadvantage for voters challenging state’s vote denial measures. Our lawsuit, filed the day the law was implemented, illustrates some of the obstacles to protecting voting rights in the post-Shelby era.

    Section 2’s prohibition on racial discrimination is one of the remaining tools to protect the franchise, but it requires that litigation take place after a law has already gone into effect. As such, the advantages of time and inertia have shifted back to the perpetrators of voter suppression and away from its victims.  Section 2 cases are fact intensive, time-consuming and resource-intensive undertakings.  With constant election cycles, there is no guarantee that the legality of state election laws will be determined before voters are irreversibly disenfranchised.

    The 2014 federal election provides numerous examples. In late 2014, we saw rapid-fire orders by the U.S. Supreme Court, instructing the Sixth, Fourth, Seventh and Fifth Circuits to put election-related decisions on hold until after the election.  Over the course of three weeks, the U.S. Supreme Court made four determinations that affected voting rights in key federal elections.  On September 29, 2014, the Court stayed an Ohio district court decision, upheld by a Sixth Circuit appeals panel, enjoining the state’s cuts to early voting.  The following week, on October 8, the Court stayed the Fourth Circuit mandate to reinstate same-day registration and out-of-precinct voting, after the district court declined to enjoin the practices.  The next day, the Court vacated the Seventh Circuit’s stay of a Wisconsin district court’s permanent injunction of the state’s strict voter ID law.  On October 18, the Court denied applications to vacate the Fifth Circuit’s stay of a decision enjoining Texas’s voter ID law. 

  • August 6, 2015
    Guest Post

    by Joshua A. Douglas, the Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    Fifty years later, and we are still trying to figure out the puzzle. Today – the 50th anniversary of the Voting Rights Act – represents both a milestone and an opportunity. It is a milestone that allows us to reflect on how far we have come in protecting the right to vote. It is an opportunity to discern how best to protect the right to vote during the next fifty years, and beyond, particularly in light of the U.S. Supreme Court’s recent decisions curtailing that hallowed law. 

    In a new Issue Brief, which stems from two recent scholarly articles on the subject, I argue that, particularly given recent Supreme Court rulings and the now-reduced force of the Voting Rights Act, the answer of how best to protect the right to vote lies with state constitutions and state courts. 

    Unlike the U.S. Constitution, which merely implies the right to vote, virtually all state constitutions explicitly enumerate this right. We simply need state judges who are willing to construe broadly and independently these state constitutional grants of the right to vote.

    Part of the difficulty in finding a solution to our voting rights conundrum is that the U.S. Constitution does not provide an explicit individual right to vote. This might seem surprising given that voting is one of our most cherished rights. But the U.S. Constitution confers only “negative” rights, or prohibitions on governmental action. As a result, federal jurisprudence on the constitutional right to vote has been narrow, pigeon-holed under the Equal Protection Clause of the Fourteenth Amendment.  The Supreme Court’s test for the right to vote allows states to impose burdens so long as they are not “severe,” and it fails to require states to justify their electoral laws with any specificity. This gives room to partisan legislatures to enact election rules that curtail voting opportunities.

    State constitutions, however, explicitly grant the right to vote, saying that citizens “shall be entitled to vote” or are “qualified electors.” These provisions go substantively further than the U.S. Constitution because they specifically confer voting rights.

  • August 6, 2015
    Guest Post

    by Mimi Marziani. Ms. Marziani is the Legal Director of Battleground Texas and teaches “Election Law and Policy” at University of Texas School of Law. All views are her own.

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    You may be tempted not to think too deeply about the Fifth Circuit’s decision yesterday, affirming that Texas’s photo ID law disparately burdens Black and Latino voters and thus violates Section 2 of the Voting Rights Act. Perhaps you just want to celebrate the result: that ‒ unless appellate review dictates otherwise ‒ Texas’s discriminatory law will be reformed. Or, maybe you are tired of hearing about Texas this week. On Monday, our attorney general, Ken Paxton, was indicated for securities fraud (oops) and on Tuesday, former governor Rick Perry failed to make the cut for the first GOP debate (famously, oops).

    But the Fifth Circuit’s opinion underscores truths about voting in Texas that, like the Lone Star State itself, cast an oversized shadow on election law and policy nationwide.

    To start: As the court recognizes, numerous empirical studies confirm that increasing the cost of voting decreases turnout. This is particularly true for low-income citizens who are, in the Fifth Circuit’s words, the “most cost sensitive.” The Texas photo ID law operates to impose severe burdens upon the poor, who are wildly less likely to have one of a few types of IDs that satisfy Texas’s law such as a driver’s license or passport, and cannot afford the necessary underlying documentation. As one voter put it during trial, before paying $42 for a birth certificate so she could get an ID, she had to weigh the significant costs to her family, explaining that “we couldn’t eat the birth certificate, and we couldn’t pay rent with the birth certificate.” Understandably, most people in that situation will not vote. The rent is too damn high.

    Moreover, as the Fifth Circuit detailed, due to historical discrimination, Black and Latino Texans are, on average, less likely to graduate from high school, more likely to be unemployed, and more likely to be in poor health. These factors lead to wide income gaps — 29 percent of Blacks and 33 percent of Latinos live below the poverty line, compared to just 12 percent of Anglos. This means that the ID law’s burdens on poor voters are disparately felt by communities of color.

  • August 5, 2015
    Guest Post

    by William R. Yeomans, Fellow in Law and Government at American University Washington College of Law and a former acting Assistant Attorney General for Civil Rights

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    Access to the ballot should not be a partisan issue. Republicans, however, have teed up ballot access as a defining partisan issue. Just as this emphasis placed renewed pressure on our laws against racial discrimination, five justices fulfilled a longstanding conservative goal by disabling the requirement that states and localities with extensive histories of racial discrimination seek approval of voting changes from the federal government. Shelby County v. Holder lifted the preclearance requirement, unleashing jurisdictions to adopt photo ID laws, restrictive registration measures, shortened voting periods, and other measures that disproportionately restrict the opportunities for minority voters to cast ballots. Jurisdictions have concocted thoroughly debunked allegations of in-person voter fraud and unconvincing administrative cost justifications in support of these restrictions. As a last defense, they have sometimes conceded the partial truth – that these restrictions are designed to discourage Democrats from voting, as if that partisan purpose excuses their racial impact.

    How did we reach this point where electoral partisanship is so closely entangled with race? After all, the history of our nation is one of struggle to expand the franchise to incorporate once excluded segments of the electorate. We gradually and often painfully shed voting restrictions on non-property owners, the illiterate, women, and 18-to-20-year-olds. Twice we sought to guarantee the right to vote without regard to race – first through the Fifteenth Amendment and nearly a century later through the Voting Rights Act. The undeniable message of this progression is that the country gradually embraced the notion that every citizen of sufficient age, sound mind and (in too many states) non-felonious criminal record should be permitted to vote.

    Yet, partisan consequences already burdened the mind of President Lyndon Johnson when he signed the Voting Rights Act in 1965, noting that he feared his signature would hand over the South to the Republican Party. Indeed, as Democrats nationally became the party of civil rights, the once Democratic leaders of segregated southern states turned to the Republican Party, whose presidential nominee in 1964, Barry Goldwater, had opposed the 1964 Civil Rights Act. The Republican Party, led by Richard Nixon in 1968, saw political advantage in catering through its southern strategy to the backlash against the civil rights movement, Brown v. Bd. of Education and its progeny, and the civil rights laws of the 1960s.

  • August 5, 2015
    Guest Post

    by Gene Nichol, Boyd Tinsley Distinguished Professor, University of North Carolina School of Law

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    In gutting what, for so many, had been the central enforcement mechanism of the iconic Voting Rights Act, Chief Justice Roberts wrote, famously, in the Shelby case, “Things have changed in the South . . . dramatically.” The “[n]ation has made great strides.” The Congress, in his view, had “failed to speak to current conditions.” Near unanimous votes in the House and Senate, reauthorizing the Act, had failed to perceive our present exalted attainment. Roberts and his four always-perceptive colleagues knew better. Black voting rights are secure here in Dixie. Bless his heart.

    Within hours of the announcement, Sen. Tom Apodaca, Republican Chairman of the Rules Committee in North Carolina, announced, correctly, that the floodgate had been opened. The already-ambitious voter suppression effort the General Assembly had been considering could, as a result, shoot for the stars. “Now we can go with the full bill,” he enthused. The “headache” of the Voting Rights Act was dispatched. The bill grew from 14 pages to 57. It added 48 new sections, running the gamut of innovative electoral constraint. The Brennan Center called it the “most restrictive since the Jim Crow era.” What Roberts said no longer occurs in the southland happened immediately, here and, of course, elsewhere. Perhaps the Chief Justice was surprised. I doubt it. Certainly no one in North Carolina was.

    North Carolina is 22 percent African American. Both houses of our General Assembly have massive, veto-proof Republican majorities. When they retreat to their respective caucuses to discuss and, effectively, to enact the laws that govern us, no black member is present. There aren’t any. So, in the last four years, as the legislature has racially gerrymandered our electoral districts, repealed a crucial Racial Justice Act, ushered in harsh voter ID requirements, kicked 500,000 people off Medicaid, passed the largest cut to a state unemployment compensation program in American history, and abolished the state’s earned income tax credit, no black voice, yea or nay, was offered. A white governor and an all white cabinet round out the picture. North Carolina is run by a white government. It is 2015.