Election law

  • October 17, 2013
    Guest Post

    by Paul M. Smith, Partner, Jenner & Block. Mr. Smith is a longtime Supreme Court practitioner and a member of the ACS Board.

    As the lawyer who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, I was both fascinated and pleased to hear that Judge Richard Posner – the author of the Seventh Circuit majority opinion affirmed by the Supreme Court in Crawford v. Marion County Elections Board – has now publicly stated that he was wrong.  It is refreshing, if not unprecedented, for a jurist to admit error on such a major case. 

    I was a little less pleased to see that he attempted to excuse his error by blaming the parties for not providing sufficient information to the court.  As he put it in an interview quoted in the New York Times, “We weren’t given the information that would enable that balance to be struck between preventing fraud and protecting voters’ rights.”  Really?  The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately: “Let’s not beat around the bush:  The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”

    That insight about the purpose of the law was supported by this information, all of which was provided to Judge Posner and the Seventh Circuit:

    There had never been a single known incident of in-person voter impersonation fraud in the history of Indiana and there have been precious few nationally – yet the Indiana law targeted only in-person voting.

    The law was passed immediately after Republicans took complete control of the legislature and governorship of the State of Indiana. 

    Every Republican legislator supported the law, while every Democratic legislator opposed it.

    But what about the effects of the law?  Well, Indiana Secretary of State Todd Rokita, the primary supporter of the bill, himself stated that there are certain “groups of voters for whom compliance with [the Voter ID law] may be difficult” because they are “registered voters who do not possess photo identification; who may have difficulty understanding what the new law requires of them; or who do not have the means necessary obtain photo identification.”  As examples he mentioned “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.”  Moreover, the district court had conservatively estimated that there were 43,000 voting-age Indianans without a state-issued driver’s license or identification card, and that nearly three-quarters of them were in Marion County, which includes Indianapolis.  In other words, the persons most likely to be affected were poor and minority residents in the state’s largest city, who tended to vote Democratic and lived in a city that was trending Democratic. 

  • July 3, 2013
    Guest Post

    by Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Schwinn is also Co-Editor, The Constitutional Law Prof Blog.

    The Supreme Court and the State of Texas wasted little time last week in revealing the full implications of the Court’s ruling in Shelby County v. Holder. Between the Court’s rulings and the State’s reactions, we will soon see fundamental changes to Texas’s election law that will almost surely have a retrogressive effect on the right to vote of racial minorities in that state.

    We all know that last week the Court in Shelby County gutted the preclearance provision of the Voting Rights Act by striking the coverage formula for preclearance. The ruling lifted the preclearance requirement for all previously covered jurisdictions, including Texas, and rendered preclearance dormant unless and until Congress can rewrite a coverage formula. 

    But less widely known is this: Just two days after the Court issued the Shelby County ruling, it issued orders vacating two federal court decisions denying preclearance to two proposed changes to Texas’s election law -- a new and stringent voter-ID requirement, and redistricting maps for Texas’s congressional and state legislative districts.  That same day, the Texas Attorney General announced that those proposed changes would go into effect -- that after Shelby County these changes “need not . . . go through the lengthy and costly federal preclearance process because of Tuesday’s ruling by the U.S. Supreme Court . . . .” 

  • 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.)