Shelby County v. Holder

  • November 4, 2014

    by Paul Guequierre

    Today your Facebook and Twitter feeds are likely full of posts from your friends telling you to vote. This morning when I turned on my computer I was instantly bombarded with ads and posts telling me who to vote for and others saying it doesn’t matter who I vote for, as long as I vote.  Admittedly I shared the first post I saw, which depicted a big button that said “Vote.” I added my own little commentary saying I hope my friends in D.C. and back home in Wisconsin vote today. I voted early last week, so in my mind I had done my civic duty. I smiled at my Facebook post thinking all my friends will see how civic-minded I am. Then reality hit.

    It was easy for me to vote early last week. I had the luxury of taking a long lunch hour and walking to the early polling place with two colleagues. As I walked in I was a tad annoyed when I was told there would be about a five minute wait. There was no line, how could there be a wait, I thought. But it was no big deal, for me anyway. I’m paid salary, not hourly, and I have an understanding boss who encourages me to vote. I didn’t have to worry about missing work, not making money while I took the time to walk to the polling place and cast a ballot. My biggest worries were the sudden drop in temperature which made it a rather chilly day and the ridiculous five minute wait, which actually ended up being only about a three minute wait. Still I rolled my eyes.

    But I voted and my vote will be counted, there’s no question about that. Regardless of whether the people I voted for win, I know I wasn’t disenfranchised. I never even had to worry about that. That’s not the case for far too many people in this country.

  • November 3, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law. Follow Professor Ellis on Twitter @atibaellis

    The debate over voter identification laws in this election season has shown once again that the voter fraud debate has shaped the right to vote over the last decade.  Recently, voter identification laws in Wisconsin, North Carolina and Texas – passed on the belief that the integrity of elections must be defended against the imminent threat of voters who will impersonate other voters and otherwise commit fraud—has spurred substantial litigation and, most recently, generated a hotly contested denial of a stay of the Texas voter ID law over a scathing dissent from Justice Ruth Bader Ginsburg. 

    Scholars like Lorraine Minnite, Richard Hasen, Justin Levitt and others, have shown that this voter fraud claim is a myth. Yet, right-leaning pundits like Hans von Spakofsky and Mona Charen have argued that voter fraud will likely occur in the 2014 election. Thus, some pundits, politicians and grassroots organizations like True the Vote see rampant voter fraud as real and looming, despite all research to the contrary.

    This voter fraud claim is often seen as partisan-motivated propaganda or a means perpetuating racial subordination – some call it the return of Jim Crow. Yet, as I argue in an article recently published in the Catholic University Law Review, these claims must be connected to the long saga of voter suppression in the United States. In The Meme of Voter Fraud (also available here), I explain that the voter fraud myth is the latest step in the evolution of the American ideology of exclusion – the belief that “unworthy” citizens should be excluded from the electorate. 

    A meme (an idea based on evolutionary theory) is any idea, belief, concept or behavior that spreads and replicates in the culture. Memes replicate through, among other ways, the sharing of narratives, teaching, or posting on the Internet (think cat videos!). Memes are appealing because they play into a person’s experiences, and on some level people identify with them. This fact prompts a person to share the idea, and the most attractive memes spread virally. As a meme spreads, people often modify it to attract a broader audience.  The new recipients will in turn transform the meme again and replicate it, causing it to evolve (and the changes that fail cause that particular meme to die off). A meme’s appeal and its ability to meet our psychological needs – for instance, for political or social power – causes people to spread memes, not the truth or falsity of the meme.

    People can connect one meme with other memes to develop a complex set of ideas – an ideology – which we use to view the world. And, as scholar J.M. Balkin has observed, ideologies that spur us to action to subjugate the rights of others inevitably result in injustice. Memes can enable power plays, and those most invested in maintaining that power maintain the meme to this end, despite any oppression that might occur.

  • October 2, 2014
    Guest Post

    by Kareem U. Crayton, associate professor of law, the University of North Carolina School of Law

    Voting has been described by the Supreme Court as “preservative of other basic civil and political rights.” So when law and policy leave voting insecure, the core project of governance itself faces grave risk. 

    During oral arguments preceding the June 2013 decision to invalidate a key feature of the Voting Rights Act in Shelby County v. Holder, Justice Anthony Kennedy dismissed concerns that voting would become less secure for racial minorities. Even absent Section 5’s preclearance oversight for states with egregious histories of discrimination, Kennedy asserted, Section 2 of the law would allow citizens to use traditional litigation to block discriminatory laws. A year into the post-Shelby County era, we have initial evidence of how this litigation has fared in practice.

    One test of Section 2 is playing out in North Carolina, where this week the 4th Circuit Court of Appeals ruled in favor of the North Carolina NAACP and allied groups in their challenge of a state law that is widely recognized as the nation’s most restrictive. The Court’s decision ordered a preliminary injunction for two provisions of the law – the elimination of same-day registration, and the prohibition of out-of-precinct ballots from being counted. The decision means that these rules will not apply in the November election, contrary to an earlier decision by a U.S. District Court to deny this preliminary injunction. A full trial regarding the merits of the law will go to court next July.

    According to the 4th Circuit, “The district court got the law plainly wrong in several crucial respects" in assessing whether North Carolina’s measure, known as H.B. 589, was likely in violation of Section 2. They continued, "When the applicable law is properly understood and applied to the facts as the district court portrayed them, it becomes clear that the district court abused its discretion in denying plaintiffs a preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect while the parties fight over the bill's legality."

    North Carolina’s H.B. 589 enacts multiple changes to the state’s election system. It eliminates same-day voter registration, prohibits out-of-precinct ballots from being counted, shortens the early voting period by a week, eliminates a successful pre-registration program for 16- and 17-year-olds, prohibits counties from extending Election Day poll hours to account extraordinary circumstances (such as long lines), permits poll observers to challenge voters, and implements a strict photo ID requirement.

  • August 25, 2014

    by Caroline Cox

    In 2013, the Supreme Court severely weakened the Voting Rights Act of 1965 with its  decision in Shelby County v. Holder. In a discussion of the post-Shelby era at the 2014 ACS National Convention, Gilda Daniels, Associate Professor of Law at the University of Baltimore School of Law, offered both hope for and a realistic take on the challenges facing those who are working to protect voting rights.

    Daniels has made her career as a voting rights expert with over a decade of experience bringing cases on provisions of the Voting Rights Amendment and other statutes. As a former deputy chief in the Department of Justice Civil Rights Division, Voting Section, Daniels recognizes Shelby’s immense impact on voting laws in the United States. More restrictive voting laws have already appeared throughout the country, and the legal means to challenge discrimination in voting are too costly both in terms of time and money to be the solution. “It’s very similar to what happened during Reconstruction,” Daniels remarked. “You pulled the protections, and you got massive voter suppression, and I am afraid that can happen in this generation.”

    Daniels argued that powerful advocates are the key to protecting voting rights. While the Voting Rights Act Amendment is a good start, “it still leaves a gulf between what is needed and what’s being proposed,” according to Daniels. The new landscape of voting offers new opportunities to speak to the importance of this right and challenge discrimination. “We have to be more creative about how we fashion the narrative, how we talk about voting rights, how we put our cases together, where we file our cases so we can start regaining ground we have lost,” Daniels explained. Even reminders that voter registration matters, Daniels argued, can be an important step to tipping the scales in favor of voting rights again.

    Watch the brief interview with Gilda Daniels below or here. For information about the VRAA see this ACS Issue Brief

  • August 6, 2014
    Guest Post

    by Estelle Rogers, Legislative Director, Project Vote

    *This piece originally appeared on Project Vote’s Voting Matters.

    Forty-ninth anniversaries don’t usually garner much attention, but today a 49th anniversary—though filled with pathos—is worth commemorating. The Voting Rights Act was signed into law by President Lyndon Johnson on August 6, 1964. Often called the “crown jewel” of the civil rights movement, the Voting Rights Act has now lost a bit of its luster, tarnished by the Supreme Court’s decision in Shelby County v. Holder.

    The passage of the Voting Rights Act took barely four months after the President sent the bill to Congress; he called it “one of the most monumental laws in the entire history of American freedom.” And it passed by overwhelming bipartisan majorities in both chambers, foreshadowing the four reauthorization votes that reaffirmed its vitality over the years since. The last, in 2006, passed by a vote of 98-0 in the Senate and 390-33 in the House. But no more.

    Since the Supreme Court eviscerated preclearance, one of the most important tools written into the VRA to fight racial discrimination, the law’s historical bipartisan support seems but a distant memory.  Preclearance requires states and smaller jurisdictions with particularly troubling histories of voting discrimination to secure federal approval in advance for any voting changes. The law swept broadly, recognizing that even seemingly trivial statutory or administrative changes often operate to disadvantage racial and language minorities. One of its most significant advantages was to mitigate the necessity to file expensive and time-consuming lawsuits to redress voting discrimination on a case-by-case basis. As part of the VRA, it was reauthorized four times. But no more.