Voting Rights

  • February 9, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center's blog.

    by Molly Danahy, Partner Legal Fellow at the Campaign Legal Center 

    The 2016 elections were dogged by questions about the integrity of our electoral system – from false claims that millions of people voted illegally – to legitimate concerns about the first election in fifty years without the protections of the Voting Rights Act. Also, there have been new worries about foreign actors interfering in our political process. During the primary season and in the general election, voters raised concerns about purged voter registration lists and long lines. In addition to the hacking of emails by Russian actors, there is also evidence that hackers attempted to penetrate state voter registration systems across the country. With plenty of challenges in election administration to address, why did a House Committee vote yesterday to eliminate the Elections Assistance Commission (EAC) – an agency tasked with evaluating and improving the efficiency and security of federal elections?

    One of the EAC’s primary tasks is to assess and certify the integrity of electronic voting systems to ensure that they are functional, accessible and secure. The Commission accredits independent laboratories to test voting systems and provides voluntary guidelines to the states for assessing the health of their voting systems. It also tracks problems with election systems and creates accountability by providing public access to its reports and collecting and publishing data about election administration across the country. At a time when the public could use reassurance about the integrity of our elections, defunding the only federal agency devoted to secure election administration defies rational explanation. In a display of willful blindness to the public’s concerns, the sponsor of the bill to eliminate the EAC says he believes the agency has “outlived its usefulness and purpose.”

  • February 3, 2017
    Guest Post

    *This post updates the Aug. 6, 2015 piece, State Constitutions: The Next Frontier in Voting Rights Protection.

    by Joshua A. Douglas, the Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    On the 50th anniversary of the Voting Rights Act, in August 2015, I wrote that "A renewed, independent focus on state constitutions and their explicit grant of the right to vote would restore the importance of the most foundational right in our democracy." In the Trump era -- with false claims of widespread voter fraud and likely calls for new restrictive voting rules -- that reliance on robust state constitutional protection is more vital than ever.

    Reformers who care about protecting the right to vote face an uphill battle in the current political environment. The Trump White House, the Republican-led Congress, and even many conservative-controlled state legislatures are unlikely to enact meaningful voting rights reform in the near future. The Supreme Court, especially with a new conservative justice, is unlikely to alter its crabbed interpretation of U.S. constitutional protection of the right to vote. State courts are therefore even more important in vindicating the most fundamental right in our democracy by checking partisan abuses and attempts at entrenchment. They must recognize the robust right to vote that all state constitutions confer and construe them as providing stronger protection than the Constitution.

  • November 10, 2016

    by Katie O'Connor

    Putting politics aside (which I acknowledge is not the easiest thing to do right now), most people felt some sense of relief on the morning of Nov. 9, 2016. We did not wake up to a nail-bitingly close election, to a plane full of lawyers flying to Florida or Ohio or Pennsylvania, to lawsuits being filed over rigging and fraud and voter suppression. We did not wake up to a nightmare scenario like that of Nov. 8, 2000. Broadly speaking, our election system functioned the way it is supposed to function and the results reflected the votes cast by the people.

    But that is only the top line of the story. Beneath the surface, myriad issues deserve our attention.

    This was the first election in over 50 years where voters were without the protections of Section 5 of the Voting Rights Act and that almost certainly took its toll. Section 5 required federal approval for proposed voting changes in states and local jurisdictions with a history of discriminatory voting practices. This put the onus on the states to justify restrictions on the right to vote and put time on the side of voters whose rights would be protected until the state had proven that new rules would not have a discriminatory effect. The Supreme Court’s 2013 Shelby County v. Holder decision, striking down Section 5, opened the door to onerous voting restrictions and many states wasted no time passing them. As a result, voters in North Carolina, Arizona, Texas, and many other states had to navigate new burdens during this election and many citizens were undoubtedly disenfranchised as a result. In the coming months, we must determine how these laws ultimately affected the right to vote and whether the Voting Rights Act needs to be strengthened to prevent it from happening again.

    This was the second election in sixteen years that resulted in a split between the winner of the national popular vote and the winner of the Electoral College vote. As previous candidates in this scenario have done, the candidates this year knew the rules of the game and accepted that the Electoral College ultimately decides the election. Nevertheless, this result should induce us to revisit the fairness and utility of the Electoral College. There are valid arguments on both sides of the debate, but they all deserve a fair hearing.

  • October 26, 2016

    by Katie O'Connor

    In these final two weeks of what has started to feel like the presidential election campaign version of Snowpiercer, we are all gearing up for a busy Nov. 8. Canvassers are undertaking GOTV efforts, station wagon and minivan drivers are volunteering to give rides, people are signing up for Election Protection and even the most casual of slacktivists are tweeting to remind their followers to check their polling places and voting hours. People are making plans to get to the polls, and many are volunteering their free time for other Election Day efforts. Election Day is exciting and our democracy is stronger when everyone wants to be a part of it.

    But zealous democratic participation has its limits. Your enthusiasm for your candidate or cause or for democracy itself has to be tempered by the right of other voters to vote without intimidation or coercion. Given the heated rhetoric about rigged elections and the persistent and forceful calls for election observers to go out and watch the polls, we should all take a minute to talk about where those limits are.

    Put simply, voter intimidation is a felony. Numerous federal laws prohibit voter intimidation by government officials and by private actors and in most states, those laws are reinforced by state laws prohibiting voter intimidation. There is no bright line to distinguish between legitimate poll watching activities and outright voter intimidation at the polls, but we know from past experience where poll watching starts to cross the line. First and foremost, poll watchers should do that and only that – watch. Directly confronting voters, especially in a threatening way, will often constitute voter intimidation. Writing down license plate numbers or taking pictures of voters as they arrive to or leave the polls will probably constitute voter intimidation. In many cases, the presence of law enforcement officials – or poll watchers who dress or say things in an attempt to mislead voters into believing they are law enforcement officials – can count as intimidation. And even if open carry laws allow firearms in a polling place, such open carry could still violate civil rights laws if it is intimidating.

  • October 13, 2016
    Guest Post

    by Joshua A. Douglas, law professor at the University of Kentucky College of Law. Professor Douglas specializes in election law and voting rights, with a specific focus on the constitutional right to vote, election administration and post-election disputes. He is the co-editor of a new book, Election Law Stories.

    When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.

    That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.

    Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)