Election Day, every school kid learns, is the one day when we are all truly equal and when we come together to make decisions that impact the whole country.
But real equality – and real confidence that we can achieve it – requires that the ballot box be readily accessible to every eligible voter and that every vote be counted as cast. To make that happen, we need elections officers, poll workers, and rank-and-file voters themselves to administer the process legally and engage in it fairly. It also helps to have candidates, particularly for the commander-in-chief’s office, who follow and respect the rules.
That is why it is especially troubling when politicians display disdain for the electoral process by urging their supporters to engage in illicit behavior that games the system.
Last month, Donald Trump called on his supporters to up-end the rules. “I hope you people can sort of not just vote on the eighth [but] go around and look and watch other polling places and make sure that it is 100 percent fine,” he told attendees at a rally in Pennsylvania. “We are going to watch Pennsylvania. Go down to certain areas,” he warned, “and watch and study, make sure other people do not come in and vote five times.”
Julie Ebenstein at the ACLU Blog reports a federal court held the system currently in place for electing school board members in Ferguson, Mo. violates the Voting Rights Act and systematically disadvantages African-Americans.
Days after issuing an injunction prohibiting the Education Department from enforcing antidiscrimination guidelines intended to protect transgender students, a lawsuit aiming to deny expanded access to medical care for transgender Americans has landed on the desk of Judge Reed O’Connor, writes The Editorial Board at The New York Times.
Fiona Ortiz and Alistair Bell explain the consequences of a 2-1 decision from a panel of the 6th U.S. Circuit Court of Appeals that upheld a law eliminating Ohio’s early voting period in an article for Reuters.
The Department of Justice submitted a brief to a class action law suit asserting the United States’ current bail system unfairly discriminates against the poor, reports Lauren C. Williams of Think Progress.
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.
You see, before Justice Kagan joined the Supreme Court, she was Professor (and later Dean) Kagan, a progressive thinker to be sure but one who expressed some serious skepticism about a 1990 Supreme Court case, Austin v. Michigan Chamber of Commerce, which upheld the ability of the government to require business corporations to pay for their political expenditures out of a separate PAC fund. Professor Kagan queried whether Austin represented a government passing a campaign finance law to protect incumbents, and whether the Court was wrong in rejecting a First Amendment challenge to the law. The Supreme Court later overturned the Austin case in its notorious 2010 Citizens United case.
The Kagan story ends with Kagan as Solicitor General of the United States defending the corporate PAC requirement in the Citizens United case, then losing that case, then getting an appointment to the Supreme Court despite misplaced conservative cries that she wanted to ban books, and now with Justice Kagan dissenting from the conservative Supreme Court’s deregulatory campaign finance decisions.
In Plutocrats United, I argue for a fundamental rethinking of 40 years of campaign finance decisions, beginning with the 1976 case of Buckley v. Valeo. In Buckley, the Court held that the government might have an interest in limiting money in politics to stem corruption, but not to assure political equality, an interest the Buckley Court called “wholly foreign to the First Amendment.”
Almost from the moment in December 2000 that the Supreme Court decided its controversial opinion in Bush v. Gore ending the recount in Florida, there has been great debate about whether the case had any precedential value and, assuming it did, what precisely its equal protection principle stood for. Was it a one-day-only ticket? Is it a case about equality of procedures in the conduct of a jurisdiction-wide recount? Or does it require broader equal treatment of voters, so as to fulfill Bush v. Gore’s admonition against the government, by “arbitrary and disparate treatment, valu[ing] one person’s vote over that of another”? We may finally find out the case’s precedential value as soon as the 2016 elections.
At the Supreme Court, Bush v. Gore has been a legal Voldemort, a case whose name a Court majority has dare not spoken since 2000. Only Justice Clarence Thomas has cited the case, in a dissenting opinion, and not speaking on its equal protection principles.
Lower courts have been initially divided over whether Bush v. Gore could be used to force jurisdictions to require greater equality in the conduct of elections. Is it an equal protection violation, for example, to use much less reliable voting technology in some parts of a state but not in others? Some courts initially ruled such disparities created constitutional problems. By 2007, however, federal appellate courts seemed to reject these muscular readings of the case, and I declared the precedent all but dead in a 2007 Stanford Law Review article.