by Gerald Torres, Marc and Beth Goldberg Distinguished Visiting Professor of Law, Cornell Law School; Bryant Smith Chair, University of Texas Law School
A recent Huffington Post article by Alex Palombo accuses Texas of discriminating against women in the exercise of the franchise because it has imposed new rules for voting which require all Texans to…
“…show a photo ID with their up-to-date legal name. It sounds like such a small thing, but according to the Brennan Center for Justice, only 66 percent of voting age women have ready access to a photo document that will attest to proof of citizenship. This is largely because young women have not updated their documents with their married names, a circumstance that doesn’t affect male votes in any significant way. Suddenly 34 percent of women voters are scrambling for an acceptable ID while 99 percent of men are home free.”
The law also imposes requirements of original documents for name change and a minimum fee of $20 to obtain acceptable copies of the documents. These requirements, in conjunction with registration deadlines, will leave many women unable to vote. Palombo views this as an assault on the 19th Amendment and women’s right to vote, suggesting that “if the Tea Party gets their way, the only people left to vote will be wealthy white men.”
Is this column another example of fear mongering from the Left? Rather than a regressive return to the days when women had no independent political existence, let alone a right to vote, Texas’ new laws surely represent the strongest possible statement supporting women’s independent personhood. Governor Perry and his legislative confederates cannot have intended to keep women from voting or to impose new, oppressive barriers to women’s participation in the political process, right? That would be illegal.
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 opinionaffirmed 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.
“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.
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.”
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.