Janai S. Nelson

  • September 19, 2013
    Guest Post

    by Janai S. Nelson, law professor, associate dean for faculty scholarship, and associate director of the The Ronald H. Brown Center for Civil Rights and Economic Development,  St. John's University School of Law. She is also author of the article, “The First Amendment, Equal Protection and Felon Disenfranchisement: A New Viewpoint.” This post is part of our 2013 Constitution Day symposium.

    “Constitution and Citizenship Day,” as it is formerly called, was once known only as Citizenship Day in commemoration of the countless immigrants who have chosen to uphold the U.S. constitution and claim the nationality of this country.  One of the most important badges of citizenship, however, is not enshrined in the constitution -- the right to vote. 

    African Americans, women, and persons as young as 18 years of age were all granted voting rights through constitutional amendments.  Those amendments established the conditions upon which the right to vote could not be denied but did not grant a universal, affirmation, and equal right to vote for all citizens.  Indeed, the need for serial amendments to create the diverse electorate we see today is evidence of this constitutional void. 

    The current assault on voter participation is also proof of this void.  If there were an affirmative right to vote in the Constitution, it would be harder for Republican-led state legislatures to enact voter ID laws that disproportionately disenfranchise the poor, minorities, students, and the elderly, more difficult for states like Florida to carelessly purge eligible voters from registration rolls, and a greater obstacle for election officials to limit participation by curtailing early voting and over-regulating registration procedures. 

    Why then should the right to vote remain absent from one of the most revered constitutions in the world?  It doesn’t have to.  Earlier this year, Congressmen Mark Pocan (D-Wis.) and Keith Ellison (D-Minn.) introduced a bill to amend the Constitution to include an affirmative right to vote.  This idea has long been supported by organizations like Fair Vote which backs the current bill through its Promote the Vote campaign -- and its time has come. 

    As I’ve written for Reuters here, “at no time in recent history has the need for a right-to-vote amendment been more pronounced.  The [Supreme] court’s ruling earlier this year in Shelby County v. Holder, disabling a key provision of the Voting Rights Act of 1965, calls for dramatic congressional action to both rehabilitate that landmark act and recommit to our constitutional ideals.”  We would be remiss if we did not use this moment to reflect on the greatness of our Constitution and also flag its weaknesses.  Indeed, there is no better time to kick-start a national discussion on the proposed right-to-vote amendment than during this celebration of both our Constitution and our citizenship, as neither is truly complete without an explicit right to vote.

  • 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.