Election law

  • March 15, 2013

    by Jeremy Leaming

    The National Voter Registration Act (NVRA, also called the “motor voter” bill) was enacted to make it easier for people to register to vote. It promotes voter registration drives and requires states to permit people to register to vote via a simple postcard when they obtain or renew their drivers’ licenses or through the mail.

    But some states have chosen to move in the opposition direction. For example, Florida in its overhaul of voting procedures not only attempted to limit early voting, it sought to make it onerous for groups like the League of Women Voters to conduct voter registration drives. Arizona enacted a law that would make it more difficult for people to register through the mail, by demanding more proof of citizenship.

    The U.S. Supreme Court has already heard oral argument in a case challenging the landmark Voting Rights Act of 1965, which requires certain states and towns – those with a clear history of past problems – to obtain “preclearance” of any changes they make to their voting procedures to ensure they do not discriminate against voters because of race. Several of the high court’s right-wing justices appeared ready to strike the preclearance provision in Section 5 of the law. If that were to happen it would deal a significant blow to one of the nation’s most powerful tools to combat racial discrimination in voting.

    On Monday, the high court will hear oral argument in another case challenging the federal government’s constitutional power to protect the right to vote. In Arizona v. Inter Tribal Council of Arizona, Inc., the justices will consider an opinion from the U.S. Court of Appeals for the Ninth Circuit that invalidated the Arizona law, saying the NRVA cannot be undermined by the states.

    In a friend-of-the-court brief lodged with the Court, the League of Women Voters urges the justices to hold that the NVRA overrides states’ attempts to restrict voting.

    “States should not be allowed to play politics with the voter registration process, the key entry point for political participation in our democracy,” the League’s President Barbara Klein said in a press releaseannouncing the group’s brief.

    The Brennan Center and the Constitutional Accountability Center have also weighed in with an amicus brief urging the court to support the federal government’s constitutional authority to protect the right to vote.

     

  • February 27, 2013

    by Jeremy Leaming

    The U.S. Supreme Court’s right-wing bloc appears ready to seriously weaken the integral enforcement provision of the Voting Rights Act of 1965.

    During oral argument in Shelby County v. Holder, all of the court’s conservative justices as SCOTUSblog publisher Tom Goldstein reported appeared “committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes.” (Section 5 requires certain states and towns, mostly in the South, to obtain “preclearance” for any changes to their voting laws and procedures to ensure they do not harm minority voters.)

    The New York Times’ Adam Liptak in a piece on today’s oral argument noted that Justice Anthony Kennedy asked attorneys arguing in favor of Section 5, how much longer states like Alabama must live “under the trusteeship of the United States government.” Liptak also noted that Justice Antonin Scalia took a shot at Section 5 saying it produces a “perpetuation of racial entitlement.” The Huffington Post's Ryan J. Reilly expounded on Scalia's commentary, noting that the justice flippantly said Congress reauthorized the Voting Rights Act in 2006 because, who could vote against a bill with  such a "wonderful" name.

    Bloomberg’s Greg Stohr also noted Kennedy’s skepticism of Section 5, saying the justice chided Congress for relying on a supposedly outdated formula for deciding what states should be covered.

    Chief Justice John Roberts asked U.S. Solicitor General Donald Verrilli whether the Obama administration believes people in the South “are more racist than citizens in the North.” The Associated Press reported that Verrilli said no.

    As Liptak noted in a piece earlier this morning, it has long been clear that the Court’s conservative wing views with great skepticism the formula Congress has used in determining what states should be covered by Section 5. He noted the 2009 opinion in Northwest Austin Municipal Utility District v. Holder, in which Roberts said Congress should revisit the formula. Congress, however, took no action. Liptak continued that the conservative justices “could stop short of striking down Section 5 itself.” Instead, Liptak said the high court could call for an end to the use of the formula, meaning Congress would need to revise it for “preclearance” to continue to be useful. (During the 2012 elections cycle, Section 5 was used by the Department of Justice to halt potentially discriminatory voting procedures from taking effect in several of the covered jurisdictions, such as Texas, Florida and South Carolina.)

    Goldstein also wrote that it appears “unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.”

    Supporters of Section 5 argued in a slew of briefs before the high court that Congress via the 14th and 15th Amendments has great discretion in crafting proper legislation to ensure that states do not violate the rights of minorities, including particularly the right to ensure states do not discriminate in voting. It appeared during oral argument that the court’s five right-wing justices believed Congress has not done its job properly.

    ACS President Caroline Fredrickson said, “With so many recent efforts to suppress the vote, it should be clear that the law remains relevant and necessary. This Court should refrain from deciding unilaterally that Congress has completed its job of ensuring the promise of the 14th and 15th Amendments.”

  • February 26, 2013

    by Jeremy Leaming

    Professor Justin Levitt says Section 5 of the Voting Rights Act provides elasticity – that is covered jurisdictions complaining about federal intrusions have a way to “bail-out,” by showing that their proposed changes to voting laws would not discriminate against minority voters. And Prof. Gabriel J. Chin says the Supreme Court, when it considers the constitutionality of Section 5 in Shelby County v. Holder, should refrain from overreaching, allowing Congress to do its job, which in part entails enforcing the Fifteenth Amendment of the Constitution.

    See their posts and others in the ACSblog symposium on the Shelby County case, which the justices will hear oral argument in tomorrow.

    Janai S. Nelson, a professor of law at St. John’s University School of Law, in a post for Reuters also provides some excellent insight into the viability of Section 5. (Section 5 requires certain states and towns, mostly in the South, with long histories of racial discrimination in voting to obtain “preclearance” for proposed changes to their elections laws and procedures from the Department of Justice or a federal court in Washington.)

    She notes that a major aim of Section 5 centers on ensuring that “new voting laws will not ‘retrogress’ – or harm – minority voting rights.”

    And as many have noted, during the 2012 elections the Department of Justice successfully employed Section 5 to prevent discriminatory elections laws from going into effect in several covered jurisdictions, such as Texas, Florida and South Carolina. (See the ACS Voting Rights Resources page for more information on this case and the landmark law.)

    Section 5, Nelson continues, has “changed the discourse around race in backrooms and in courtrooms by requiring that electoral decision-makers are not only aware of race but also are conscious of the racial harm. Indeed, Section 5’s anti-regression standard directs jurisdictions subject to oversight either to advance or, at a minimum, protect minority voting rights.”

    As noted here, Alabama officials are arguing against Section 5 partly by saying that racial discrimination is no greater in Alabama than in other states and therefore it should be dumped or greatly reworked to not burden Alabama or the other covered jurisdictions. The NAACP LDF, which is representing Alabama voters in Shelby County, says Alabama officials are turning a blind eye to the persistent efforts to harm minority voters in the state – like rewriting voting districts to dilute the minority vote, while giving more power to white voters.

    Nelson also adds that progress made in the covered jurisdictions should not lead one to conclude that Section 5 has done its job and is now an unconstitutional tool the federal government is unnecessarily wielding.

    The fact, she writes, “that the record of discrimination in covered jurisdictions has diminished is evidence that Section 5 is working – not that it has exhausted its usefulness.”

    Nelson, and other staunch supporters of the Voting Rights Act, is nailing it – Section 5 is working and the Supreme Court’s right-wing bloc, if it could keep its ideological leanings in check, would not block Congress’s constitutional authority to ensure the promise of both Fourteenth and Fifteenth Amendments.

  • February 26, 2013
    Guest Post

    by Gabriel J. Chin, Professor of Law, University of California Davis School of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

    Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.

    Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color.  The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder

    I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections.  As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights. 

    The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions.  Section 5 and other parts of the Voting Rights Act largely fixed that problem.  Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness.  Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).

  • February 26, 2013
    Guest Post

    by Justin Levitt. Professor Levitt, on loan from Loyola Law School, Los Angeles, is a visiting associate professor of law at Yale Law School. He focuses on constitutional law and the law of the political process. This post is part of an ACSblog symposium on Shelby County v. Holder.

    On Wednesday, the Supreme Court will hear Shelby County v. Holder, a challenge to part of the Voting Rights Act.  The case touches on enormously important, vigorously contested, issues: federalism, race, voting rights, political power, Congressional authority.  Amidst all of this big stuff, the Court must make sure it keeps its eye on the heart of the case.

    The fight is about a particular part of the Voting Rights Act, with special rules for much of the South (and a few other jurisdictions).  It requires these states (and counties, and towns) to run any election-related changes by the Department of Justice or a federal court, to make sure that the changes won’t leave minorities politically worse off. 

    The process of DOJ or court review is called “preclearance” – and in 1966, and again in 1980, the Supreme Court firmly validated the concept for the parts of the country with the most troubled voting rights history.  Preclearance is special medicine, which the Court has already approved for the sickest patients.

    In 2006, Congress essentially renewed the prescription as is. And the plaintiffs now challenging the law say that the patient list is out of date. It’s a 1965 take, they say, on a 21st century world: the list is no longer sufficiently tailored to where the problems are.

    So who is on the list, needing federal approval for new election rules? It starts with a formula: areas where less than half of the eligible population registered or voted in the presidential elections of the 60s. These are the parts of the country where democracy was broken. We talk about majority rule: in these areas, a majority wasn’t even able to participate.

    Shelby County, Alabama, was on the list in the 60s. And it’s still on the list now. But that doesn’t mean the list is static.  Quite the contrary: change was built into coverage from the get-go.