Election law

  • July 2, 2013
    Guest Post

    by Gilda R. Daniels, Associate Professor of Law, University of Baltimore School of Law. Daniels is a former Deputy Chief in the Department of Justice, Civil Rights Division, Voting Section. For more on Daniels' work, visit her website

    Four years ago, the Supreme Court dared Congress to change the coverage formula that determined which jurisdictions would be subject to federal oversight of voting changes under Section 5 of the Voting Rights Act. Congress did nothing. In the recent Shelby County decision, the Court indicated that it was forced to act stating, “[Congress’s] failure to act leaves us today with no choice but to declare §4(b) unconstitutional.” Further, the Court seems to deny its culpability, positing that the “nation has changed” and the formula does not address “current conditions.” While it acknowledges that the Voting Rights Act is responsible in large part for increasing voter registration for black voters and the number of minority elected officials, it essentially says that enough is enough.  It gives the impression that it views Section 5 as medicine for a disease that is no longer at epidemic proportions, but refuses to allow a targeted and effective remedy to currently infected areas. Thus, a majority of the justices, without doubt, believe that the “current conditions” of fewer disparities in voter registration, for example, merit the removal of all life sustaining legislation. 

    We’ve seen this before. In 1883, the Supreme Court found that the Civil Rights Act of 1875, which sought to make former slaves full and equal citizens, was unconstitutional. This marked a turning point in becoming a nation where all men were truly created equal. In less than 20 years after passage of the Fifteenth Amendment, the last African American left Congress after states implemented barriers to the franchise, such as literacy tests, grandfather clauses, and felon disenfranchisement laws.  It would take seventy years before an African American would return to Congress from a former Confederate state and almost a century from the passage of the Fifteenth Amendment before Congress would provide the nation with tools to combat massive and violent disenfranchisement in passing the 1965 Voting Rights Act.  

    Have conditions changed since 1965? Absolutely! No more segregated lunch counters, water fountains, Bull Connor in the courthouse door.  Does discrimination in voting continue to exist?  Absolutely!  The Court admits that fact, but decides that a state’s right to be treated equally instead of a citizen’s right to equal treatment is supreme.

  • June 25, 2013
    Guest Post

    by Gabriel "Jack" Chin, Professor of Law at the University of California, Davis, School of Law. He was co-author of an amicus brief in Shelby County, and of The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, published in the Harvard Civil Rights-Civil Liberties Law Review.

    Perhaps politicians will no longer do anything they can get away with to win elections, perhaps legislatures will no longer entrench themselves through districting and gerrymandering, perhaps, in short, in the recent past human nature has changed entirely.  If not, though, the Supreme Court’s 5-4 decision invalidating the coverage formula of the preclearance provisions of Section 5 of the Voting Rights Act of 1965 may well come to be regarded as one of the Court’s grand overreaches.  As obtuse on race as Dred Scott, as judicially activist as Lochner, Shelby County moves us a long step away from the goal of reliable elections reflecting the will of the majority.

    The underlying problem is that African Americans are, and have been, bloc voters to a degree matched by no other racial or ethnic group.  There is, therefore, a potential electoral payoff for conservatives in suppressing or manipulating their right to vote that exists in no other context.  African Americans also hold the balance of power in many jurisdictions, and because of residential segregation, can be subject to discriminatory treatment in a way that “Democrats” or even Asians or Latinos cannot.  Accordingly, African Americans have always been an irresistible target for manipulation and disenfranchisement, and volumes of creative electoral provisions have been created to prevent them from voting effectively.  Critically, the impulse to discriminate will remain even if racial animus has diminished, so long as political rewards for suppression remain in place.

    In Shelby County, the Court, per Chief Justice Roberts, insisted that our nation had changed.  It held that Congress in reenacting the Voting Rights Act in 2006, should not have used a coverage formula based on practices and registration figures from the 1960s and 1970s. The extraordinary burdens of the preclearance provisions, it explained, had to be justified by current conditions.  For a variety of reasons, many outlined in Justice Ginsburg’s dissent, the holding is not persuasive.

  • June 25, 2013

    by Jeremy Leaming

    The Supreme Court’s conservative majority has been itching to gut the landmark Voting Rights Act for some time and today it took a big step toward doing so. The conservative bloc led by Chief Justice John Roberts Jr. invalidated Section 4 of the Voting Rights Act (VRA), which includes a formula for determining the states, towns and localities that must obtain approval or preclearance from the federal government for proposed changes to their voting laws and procedures.

    In its 2009 opinion in Northwest Austin Municipal Util. Dist. No. One v. Mukasey, the conservative justices avoided the constitutional challenge to the heart of the Voting Rights Act, but nonetheless reiterated their desire to gut it.

    This time around a constitutional challenge brought by officials in a mostly white Alabama County gave the conservative bloc what it needed. Writing for the majority in Shelby County v. Holder, Roberts noted that in Northwest, his conservative colleagues “expressed serious doubt about the Act’s continued constitutionality.”

    Roberts continued, “We explained that Sec. 5 ‘imposes substantial federalism costs’ and ‘differentiates between States, despite our historic tradition that all the States enjoy equal sovereignty.’ We also noted that ‘[t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ Finally we questioned whether the problems that Sec. 5 meant to address were still ‘concentrated in the jurisdictions singled out for preclearance.’” Sec. 4 includes the forumla for deciding what jursidictions must comply with the VRA's Sec. 5 preclearance provision. 

    Though the case raised constitutional claims of equality among Americans, like ensuring minorities are not deprived of a fundamental right to vote, the conservative justices in Shelby were much more interested in equality among the states. As they put, citing Northwest, a “fundamental principle of equal sovereignty. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’”

    “The Voting Rights Act sharply departs from these basic principles,” Roberts wrote. “It suspends ‘all changes to state election law – however innocuous – until they have been precleared by federal authorities in Washington, D.C.”

    The conservative bloc was also incredibly confident that voter discrimination in the covered jurisdictions, mostly in the South, is a thing of the past. The majority pointed to an increase in minority registration and turnout.

    While voter discrimination allegedly subsided, Congress made the VRA more stringent and its formula for determining covered jurisdictions remained static, the majority groused. “Coverage today is based on decades-old data and eradicated practices,” Roberts wrote.

    When Congress reauthorized the VRA in 1996, which it did overwhelmingly, it should have altered its coverage formula, Roberts argued. “It instead reenacted a formula based on 40-year-old facts having no logical relationship to the present day,” he said.

    Roberts also claimed that the majority was carefully invalidating a provision of the VRA, and maintained the Court was providing “no holding” on Section 5. Instead Roberts said Congress could create a new formula.

    The dissent, lodged by Justice Ruth Bader Ginsburg and joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, however, found that the majority had usurped a job for Congress, and in a rather sloppy manner. (Congress, Ginsburg wrote, should be given deference in its constitutional authority to create appropriate legislation to enforce the 14th and 15th Amendments.)

  • June 17, 2013

    Editor's note: This post has been updated to include comment from UC Davis School of Law Professor Gabriel "Jack" Chin.

    by Jeremy Leaming

    The U.S. Supreme Court voting 7-2 dealt a setback to Arizona’s rigid voter ID law, saying the state’s additional citizenship requirements were preempted by federal elections laws.

    The setback could be seen as a victory of sorts for opponents of state efforts aimed at crafting and implementing more hurdles to voting, ones that disproportionately impact minorities, poor people, the elderly and students. Justice Antonin Scalia’s opinion, however, left the door open for Arizona and other states to try to alter the National Voter Registration Act (NVRA, also known as motor-voter) to impose stricter requirements to vote. 

    In Arizona v. Inter Tribal Council, the majority led by Scalia found that Arizona’s Proposition 200 provision requiring elections officials to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship” must “give way” to the federal form created by the Election Assistance Commission (EAC). The NVRA requires states to “accept and use” that federal form. As Scalia noted, the federal form “does not require documentary evidence of citizenship; rather it requires only that an applicant aver, under penalty of perjury, that he is a citizen.” Scalia was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

    The NVRA and the EAC were created pursuant to the Constitution’s Elections Clause (Article I, Section 4), which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations ….”

    Scalia wrote that the “textual question” in the case centered on whether the NVRA’s requirement that states “accept and use” the federal form preempts Arizona’s state-law requirement that officials reject “the application of a prospective voter who submits a completed Federal Form unaccompanied by documentary evidence of citizenship.”

    Arizona officials argued that its reading of the federal law allowed it to reject a federal form if it failed to include the additional information set out in the state law.

    Scalia said it “is improbable” that the federal law “envisions a completed copy of the form it takes such pains to create as being anything less than ‘valid.’”

    He continued, “States retain the flexibility to design and use their own registration forms, but the Federal Form [created by the EAC]  provides a backstop: No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.”

  • April 29, 2013

    by Jeremy Leaming

    North Carolina, which last year voted to amend its constitution to ban same-sex marriages even though it already had a law doing that, is now on the verge on enacting one of the nation’s more onerous voter ID laws. 

    Late last week the N.C. House easily approved the so-called Voter Information Verification Act that would require people to present government-issued voter photo IDs before casting ballots. It is expected to pass the Senate and the State’s Republican Governor Pat McCrory has signaled he’ll sign it into law. Brentin Mock reporting for ColorLines noted that last week’s vote in the lower chamber drew throngs of N.C. university students to protest the new law.  The measure would make it arduous for the state’s colleges and university students to engage in democracy. And other measures being considered, as Mock reports, are also aimed at making voting burdensome, such as limiting early voting and prohibiting all early voting on Sundays.

    The Brennan Center’s Lucy Zhou in an April 25 post about the ongoing state efforts to place more burdens on voting described N.C. as a “hotbed of restrictive voting bills” and listed the array of measures the state is moving to implement. Zhou notes that North Carolina lawmakers are striving to undercut the state constitutional rights of students to vote at their college addresses, by penalizing parents. If students register to vote under a different address, like their university address, parents will be barred from “listing their children as dependents on state tax forms ….”

    State Rep. Thom Tillis (R-Mecklenburg) in a column for The Charlotte Observer called the photo ID bill “common-sense” and likened it to showing a photo ID to board an airplane. The problem with this type of argument is that it misses a fairly significant point. Voting is integral to democracy and indeed is protected in numerous places in the U.S. Constitution. But what about air travel and purchasing cocktails or even certain kinds of decongestants, which also require identification. Those actions may be vital to the pursuit of happiness, but not all are constitutionally protected rights, and certainly not as integral to democracy as voting.

    Tillis claims “fringe elements have relied on heated rhetoric to frame this issue ….”

    There is, however, nothing radical, over-the-top, or wild-eyed about noting the fact that North Carolina lawmakers are not able to point to any in-person voter fraud that has occurred in their state. Instead it is Tillis and his cohorts who are misinforming the public by claiming the integrity of the vote needs to be protected, while offering not a shred of evidence as to when that integrity was compromised.