Democracy and Voting

  • January 19, 2015
    Guest Post

    by Elise C. Boddie, Associate Professor of Law, Rutgers University-Newark; former director of litigation NAACP Legal Defense & Education Fund, Inc.; and a member of the ACS Board of Directors.

    One of the many indelible images of the civil rights era is a black and white picture of an African-American boy, maybe nine or ten years old, holding a poster in front of the Dallas County courthouse in Selma, Alabama. The year is 1964. The boy’s small hands are clutched around the edges of his poster, which in plain, scrawled lettering, calls for people to register to vote in the name of “freedom.”   We cannot see his eyes because they are averted from the camera.  Instead, he has fixed his gaze on a group of policemen who are about to descend upon him and, as we later learn, arrest him just after the picture is taken.[1]

    The picture is a reminder that the right to vote is more literally secure than it was in Selma in 1964.  Less than a year later, Selma would emerge as the birthplace of the 1965 Voting Rights Act, following a march from Selma to Montgomery, led by Dr. Martin Luther King, Jr. and a host of civil rights leaders, including now-Congressman John Lewis.  An earlier attempted march to Montgomery led demonstrators over the Edmund Pettus Bridge, where they were beaten mercilessly by Alabama state troopers before having to turn back, all in full view of the national press.[2]  The horror and disgrace of that moment helped catalyze national support and the political will to pass voting rights legislation.[3]

    We rightly celebrate and honor Dr. King as the “drum major for justice”[4] who helped bring that fight to fruition, along with the countless, nameless thousands – the young Selma boy among them –  who laid their bodies on the line so that future generations could exercise their constitutional rights.   The police no longer beat African Americans in the street for trying to register; and literacy tests, which barred so many Blacks, Latinos, and other people of color from voting, no longer exist as a result of the 1965 Act.  The frontal indignities of Jim Crow at least are gone.

    And yet, like a weed with roots deep beneath the surface, other practices soon emerged in their place, including at-large voting schemes,[5] racially-discriminatory annexations[6] and redistricting plans that sought to “crack” or “pack” minority voters in order to dilute their voting strength.[7]   Evidence of this adaptive discrimination carries through to the present.  For example, following the record turnout of voters of color for Obama in the 2008 and 2012 presidential elections states enacted restrictive laws that made it harder to vote.[8]

    Against a record of  “unremitting and ingenious defiance of the Constitution,”[9] Congress included in the Voting Rights Act a core provision that limited the authority of states with “the most aggravated records of rank discrimination against minority voting rights”[10] to unilaterally change their voting practices.  This “preclearance” provision, known as Section 5, required covered jurisdictions with certain indicia of low voter participation to secure federal approval of any proposed voting changes[11] by demonstrating that they would not disfranchise minority voters.[12]  In a landmark case, South Carolina v. Katzenbach, the Supreme Court upheld the Act against a constitutional challenge,[13] as it would in later cases brought by jurisdictions that sought to evade the statutory protections for minority voters.[14]  In 2013, however, the Supreme Court gutted Section 5 in Shelby County v. Holder, striking down a companion provision that established the scope of Section 5’s geographic coverage.[15]  While acknowledging that voting discrimination persists, [16] the Court concluded that the coverage provision no longer reflected the most “current” manifestations of such discrimination.  In light of “dramatic” improvements in the landscape of voter suppression, the Act’s incursion on the “equal sovereignty” of the states was no longer justified.[17]   

    After Shelby, fifteen states enacted laws that discouraged voter participation.[18]  Although the precise impact of these laws is hard to determine, voters of color appear to have been disproportionately affected in at least five states – Texas, Alabama, North Carolina, Virginia, and Georgia, each of which had been covered by the Act’s preclearance provision before Shelby and each of which had also experienced a significant increase in the population of voters of color.[19]  Thus, in a time of burgeoning “minority” voting power, states have actively sought to limit accessibility to the polls.  The timing, of course, is hardly coincidental, but rather – as a Texas federal district court judge concluded with respect to that state’s photo identification law[20] – appears calculated to suppress minority turnout.[21]

  • November 18, 2014

    by Caroline Cox

    On the Melissa Harris-Perry Show, Janai Nelson and Amy Howe consider the new Affordable Care Act challenge and how Justice Scalia could be the deciding factor.

    Leslie Griffin writes at Hamilton & Griffin on Rights on how the recent opinion of Judge Cornelia Pillard of the U.S. Court of Appeals for the D.C. Circuit in Priests for Life v. HHS explains why women’s equality is not a radical idea.

    Reuben Guttman writes in the International Business Times that the U.S. midterm elections were all about money but had very little substance.

    In The Washington Post, Andrea Peterson looks at the right of citizens to record the police.

    Geoffrey R. Stone argues in the Huffington Post that Senate should approve the USA Freedom Act in order to address the issues raised by the NSA’s surveillance program.

  • November 14, 2014

    by Caroline Cox

    In The Washington Post, E.J. Dionne Jr. considers whether the latest Supreme Court challenge to the Affordable Care Act, King v. Burwell, will force Justice Scalia to separate from his principles.

    John Harwood of CNBC asserts that “the justices have placed themselves in a political vise grip” by accepting to hear the legal challenge to Obamacare.

    At SCOTUSblog, Abbe R. Gluck also examines King v. Burwell and argues the case “is about the proper way to engage in textual interpretation.”

    In other Supreme Court news, Dahlia Lithwick asserts in The New Republic that there is not enough diversity of experience among the Supreme Court justices.

    At Hamilton and Griffin on Rights, Janai Nelson looks at the important role of race in the Alabama redistricting cases. The ACS panel discussion of the cases from earlier this week can be found here

  • November 13, 2014

    by Caroline Cox

    Linda Greenhouse asserts in The New York Times that the Supreme Court’s decision to review the challenge to the Affordable Care Act in King v. Burwell is “a naked power grab by conservative justices.”

    Richard L. Hasen writes in the Los Angeles Times that Chief Justice John Roberts may not protect the Affordable Care Act in the new case before the Supreme Court.

    In the New Republic, Michael Lewis argues that growing wealth inequality is bad for the poor and wealthy alike.

    At the blog for the Brennan Center for Justice, Avram Billig examines the campaign finance victories of the recent election.

    Nina Totenberg at NPR examines the oral argument for the Alabama redistricting cases that took place on Wednesday at the Supreme Court. 

  • November 11, 2014

    by Caroline Cox

    Paul Krugman of The New York Times criticizes the new Supreme Court challenge to the Affordable Care Act and argues that the challenge is based on an “obvious typo.”

    In The Wall Street Journal, Jess Bravin discusses Justice Stephen Breyer’s comments at on his faith the Jewish Federations of North America convention.

    Jeffrey Rosen argues in The New Republic that this term may decide the legacy of Chief Justice John Roberts.

    In Slate, Richard L. Hasen previews the upcoming oral argument for the Alabama redistricting cases in which the Supreme Court will consider whether gerrymandering in the state was an attempt to disenfranchise black voters.