Democracy and Voting

  • 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.

  • July 16, 2015
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School

    *This post originally appeared on The Huffington Post.

    When most people propose changes in our electoral system, they generally do so in order to achieve a political end, not because the change conforms to a platonic ideal of what elections should be like. So it is with the plaintiffs in Evenwel v. Abbott, No. 14-940, which the Supreme Court will hear this fall. Their claim is that, when states draw their legislative districts, the Equal Protection Clause requires that they use the numbers of voters, instead of the number of people, as the basis for allocating seats within the states.

    The Supreme Court has ended the most blatant forms of gerrymandering and required legislative districts at both the state and federal level to be equal in composition within each state. The Court's rulings have been labeled "one person, one-vote," and the general assumption has been that, in dividing up each house by districts, the denominator has been the total population of the state.

    Evenwel challenges that assumption and argues that, because the goal of one person, one vote is to have each person's vote count the same as every other person's, the denominator should be total voters and not total population. If this were the law, the main groups that would no longer be counted are children, illegal immigrants, those not registered to vote, and felons who are precluded from voting. Until the actual lines are drawn for all the districts in a state, the results are not certain. But we do know that the backer of this lawsuit (Edward Blum) also supports Fisher v. University of Texas, which seeks the elimination of affirmative action in university admission. Therefore, it is reasonable to assume that he believes that the change would have an adverse impact on minorities and their Democratic supporters, or at least it has that potential in some states, including Texas where the case was brought.

  • June 30, 2015
    Guest Post

    by Sean J. Young, Staff Attorney, ACLU Voting Rights Project

    Yesterday, the United States Supreme Court issued a 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, which preserved a vital weapon against partisan gerrymandering, a practice which artificially keeps the dominant political party in power regardless of popular will. The Court held that the Elections Clause of the Constitution, as well as a federal statute (2 U.S.C. § 2a(c)), permit the people of Arizona to use the initiative process to take the congressional redistricting process largely out of the hands of state legislators (those who benefit directly from the redistricting process), and to entrust that important process to an independent body. 

    As has been widely reported, the congressional redistricting process in many places has devolved into an anti-democratic procedure where politicians essentially decide who they want their voters to be. Using demographic models and projections of voting patterns calculated down to the neighborhood-level, districts can be drawn in such a way (often into odd-looking shapes) so as to virtually guarantee an electoral outcome. Both parties are guilty of this. Thus, for instance, in 2012, in states where Democrats controlled the process, their candidates won about 56 percent of the vote and 71 percent of the seats. In states where Republicans controlled the process, their candidates won roughly 53 percent of the vote but 72 percent of the seats.  As one politician has put it, “We are in the business of rigging elections.”

    Though courts have long recognized the anti-democratic nature of partisan gerrymandering, they have thus far been reluctant or unable to stop it. So in states like Arizona and California, the people themselves have taken action. Voter-passed initiatives in both states have put redistricting into the hands of independent commissions, which are required to adhere to neutral redistricting principles such as ensuring compactness and contiguity. Though imperfect, independent commissions have been an important weapon in the fight against partisan gerrymandering.

  • June 8, 2015

    by Caroline Cox

    Jerry Markon reports for The Washington Post that the White House has stopped work on its immigration program in response to numerous legal setbacks this year.

    At SalonHeather Digby Parton writes about the plot against the Affordable Care Act and the dire circumstances that would arise should the Court rule against the healthcare law. 

    Sarah Kliff of Vox takes a critical look at the GOP's five plans to fix the Affordable Care Act should the Supreme Court strikes down the law.

    At SlateMichael J. Socolow explains how television stations are the major winners of the Citizens United ruling. 

    Kenneth Jost considers at Jost on Justice Texas's challenge to the "one-person, one-vote" rule that the Supreme Court granted cert to late last month.