Democracy and Voting

  • 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.

  • December 3, 2015
    Guest Post

    by Daniel Tokaji, Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law and Senior Fellow at Election Law @Moritz, The Ohio State University, Moritz College of Law

    On Tuesday, the Supreme Court will hear argument in Evenwel v. Abbott. The subject of the case is the meaning of the “one person, one vote” rule. The appellants argue that the Constitution requires equality of eligible voters among legislative districts. This argument is unlikely to carry the day – in fact, the appellants may well lose unanimously. Evenwel is still an important case, however, because what the Court says will affect how states draw state legislative districts after the next census and possibly even sooner. The hard question isn’t the disposition of Evenwel but rather its implications for the next case.

    The “one person, one vote” rule requires that legislative districts be drawn on the basis of population. Where single-member districts are used, each district must be of approximately equal population. In Reynolds v. Sims, the Supreme Court held that the “one person, one vote” rules applies to state legislative districting. This ended the states’ practice of using districts with very different populations – some with disparities over 40:1 – which generally advantaged rural areas at the expense of urban and suburban areas.

    Reynolds left open the population metric that states can or should use when drawing districts. There are several possible choices. The broadest measure is total population. That’s what Texas uses in drawing its 31 state senate districts, giving each one approximately the same number of people. Total population is also the metric used in the other 49 states, according to the United States’ amicus brief. A narrower basis for drawing districts is the U.S. citizen population (excluding non-citizens). An even narrower metric is the citizen voting age population (excluding those under 18) or, narrower still, the citizen voting eligible population (excluding people ineligible to vote due to felonies or mental incapacity). Counting only eligible voters would have a negative impact on the representation of racial minorities and other communities with large numbers of children, non-citizens, and other non-voters.

  • November 12, 2015
    BookTalk
    Lion of the Senate
    When Ted Kennedy Rallied the Democrats in a GOP Congress
    By: 
    Nick Littlefield and David Nexon

    by Nick Littlefield and David Nexon

    The just-published Lion of the Senate offers an insider’s view of several remarkable years when Senator Edward Kennedy fought to preserve the Democratic mission against Newt Gingrich’s Contract with America and a Republican majority in both houses. He not only prevailed; he was able to pass important progressive legislation even in that highly partisan, bitterly divided Congress. That story has special resonance today as a resurgent Republican right once again controls Congress and as the policy gridlock seems hopeless.   

    Nick and I were both senior policy advisors to the Senator during the period the book covers—roughly1995-1997. Nick was Senator Kennedy’s staff director on the Labor and Human Resources Committee (now the HELP Committee) and I was head of the senator’s health policy staff.  Lion of the Senate is the story of Kennedy at the height of his powers waging the fight of his life against then Speaker of the House Newt Gingrich and the conservative movement he led. The 1995-1996 Republican House and Senate with Bill Clinton in the White House mirror the fraught circumstances on Capitol Hill today, as President Obama and the Democrats in Congress face an equally determined Republican majority seeking to enact essentially the same agenda that Kennedy defeated in the 1995-1996. In a striking parallel, today’s Republicans, like those of the Gingrich era, have used the threat of a government shutdown and even loan default to achieve their goals. What the Senator accomplished and how he did it is both an exciting narrative and a blueprint for today’s Democrats.

    In addition to its contemporary relevance, The Lion of the Senate is, I think, a book that many in the ACS community will enjoy because of their interest in politics and their long alliance with Senator Kennedy on so many issues. Told from Nick’s point of view, it is a close-up account of how Kennedy rallied the Democrats to resist and ultimately defeat the Gingrich agenda and broke through the partisan gridlock to pass a minimum wage increase, important health insurance regulatory reform, and the Child Health Insurance Program (CHIP). The book reveals why Kennedy was such a towering figure as a politician and a legislator, what it was like to be a Senate staffer working for him, and provides a vivid picture of how the Senate operates.