Democracy and Voting

by John Schachter

While most Americans know that today, February 22, was George Washington’s birthday, not enough know that he shares this day with another late great American. Former Senator Edward M. Kennedy (D-Mass.) would have turned 81 today had he not tragically succumbed to brain cancer in August 2009. Fortunately his legacy lives on.

On so many of the issues dominating the public debate today -- voting rights, educational opportunity, marriage equality and equal rights for all Americans – Kennedy was a leader and a force to be reckoned with. As the Supreme Court grapples with these issues and more, let us hope that Kennedy’s work will be neither forgotten nor for naught.

In honor of Kennedy’s life and legacy, the Edward M. Kennedy Institute for the United States Senate was founded in Massachusetts following his death. The Institute “is dedicated to educating the public about our government, invigorating public discourse, encouraging participatory democracy, and inspiring the next generation of citizens and leaders to engage in the public square.” To commemorate his birthday, the Institute has posted a tribute video first shared at a celebration of Kennedy’s 77th birthday. It’s well worth a watch.

Kennedy was a leading advocate of progressive ideals and also a friend to ACS. He was a major draw at a 2002 ACS national event and also authored an article for the summer 2008 volume of the Harvard Law & Policy Review (HLPR), the official journal of ACS, on the work of the Justice Department's Civil Rights Division.

Ted Kennedy will be remembered for many things, for better or for worse. But his nearly five decades in the Senate left a record in many ways unparalleled in the history of the institution. And while he is no longer around to keep the work going, that doesn’t mean the work is done. As was often the case, no one could put it better than Kennedy himself: “For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die.”

by Jeremy Leaming

Alabama officials will take to the U.S. Supreme Court on Feb. 27 to try to gut the Voting Rights Act’s integral enforcement provision, Section 5. And their argument, what the Constitutional Accountability Center’s Simon Lazarus calls the “goofy gripe,” rests largely on the claims that racial discrimination in voting happens everywhere and so why pick on certain states.

Lazarus notes, however, that just last year the Voting Rights prime enforcement provision was employed by the Justice Department to scuttle “vote suppression techniques familiar to all who followed the 2012 campaign: stringent voter ID laws, curtailed early voting opportunities, and discriminatorily rigged redistricting plans.”

But the Alabama officials’ arguments are more than goofy, they’re ludicrous. There’s a reason why Section 5 remains relevant, because tawdry, bigoted attempts to deny minorities the right to vote remain the most intense in specific states and localities.

First let’s start with some basics. The Constitution’s Fourteenth and Fifteenth Amendments bar the states from depriving citizens of liberty and from denying the right to vote to minorities. Moreover, both amendments include sections granting Congress, not the courts, the power to craft appropriate legislation to enforce the promise of both Amendments.

When Congress enacted the Voting Rights Act it determined that some states and localities, mostly in the South, had much deeper and more intense histories of oppressing African Americans, including keeping them away from the polls. So Congress included a rather strong enforcement mechanism, Section 5, which would require those covered jurisdictions to obtain “preclearance” for any changes to their voting procedures from the Department of Justice or a federal court in Washington, D.C. In 2006 Congress in bipartisan fashion overwhelmingly reauthorized Section 5 for another 25 years, after amassing a voluminous record showing that the covered jurisdictions by far remained the most fertile ground for racial discrimination in voting. The evidence was that although progress had been made in the South, there remained a stubborn bigotry resulting in ongoing efforts to suppress the minority vote.

During an ACS panel discussion this week on the case challenging Section 5, Shelby County v. Holder, several panelists noted stories from Texas, Alabama and other covered jurisdictions of “serial” efforts to suppress or dilute the vote of minorities. For example in 2008 Alabama officials, as NAACP LDF’s Ryan P. Haygood recounted, sought to implement a discriminatory redistricting plan to drastically reduce the sole majority black district in the state by creating hundreds of annexations, without obtaining preclearance. When the Justice Department did review the redistricting plan, it was rejected as discriminatory. Nonetheless the officials held the election with the discriminatory redistricting scheme and the DOJ lodged a Section 5 enforcement action undoing the election and requiring another election to be held. (LDF is representing voters in Alabama in the Shelby County case; for more on Section 5 and Shelby County see ACS’s Voting Rights Resources page.) Video of panel discussion is below or here.