Voting Rights

  • 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.)

  • October 13, 2016
    Guest Post

    by Ngozi J. Nezianya, JD/MBA Candidate, Northwestern University; President, ACS Student Chapter at Northwestern University School of Law; Next Generation Leader and Student Member, ACS National Board of Directors

    Imagine a world in which registering to vote took only a simple form and no more than a few minutes of your time. Imagine a world in which the myriad ways that our government entities use to identify you could ensure that you get a say in exactly who does the verifying. Imagine a world in which casting your ballot could be completed on your way to work, on your lunch break or on your way home before you pick up the kids from school.

    Such a utopia need not be reserved for the depths of our imagination. In fact, for some in our country, much of this is already a reality. Thirty-one states and the District of Columbia currently offer online voter registration and five states automatically place their citizens onto voter rolls whenever they interact with government agencies. In the last presidential election, the average time it took to vote actually fell across the country – from 16.7 minutes back in 2008 to 13.3 minutes in 2012.

    Yet, despite those positive developments, one need only scratch the surface of these rosy data to reveal the discordant truths that coexist in our democratic process. Seven states maintain strict laws that require forms of photo identification that 11 percent of eligible voters do not have. Federal law requires states to maintain updated voter registration lists; however, when those laws result in the purges of millions of citizens from the rolls every two years, various states and their officials seem to disproportionately remove the poor, mistakenly remove Asian and Hispanic voters because they matched their surnames to the wrong people and in some cases outright intimidate black voters by sending police officers door-to-door to challenge those voters’ registrations. (And those are not even the most egregious purges.) Lastly, countless stories have documented how the closure of polling locations in heavily populated voting districts and the shortening of early voting periods across the country have caused citizens to wait up to five and seven hours in the blistering sun to exercise a right that the Supreme Court, dating back to 1966, had previously deemed “fundamental.” In other words, the extraordinary degree of variance at the other end of the voting experience skews our democratic process toward dystopia.

  • September 30, 2016
    Guest Post

    by Danielle Lang, Deputy Director of Voting Rights and Anna Bodi, Partner Legal Fellow at The Campaign Legal Center

    Larry Joe Newby is a U.S. citizen living in Huntsville, Alabama. Mr. Newby is married, attends church, is raising his two adopted grandsons and works for the County as an assistant supervisor. However, due to a few minor non-violent offenses from well over a decade ago, Mr. Newby has not been able to vote and will not be able to cast a ballot this November. Mr. Newby is just one of the 5.85 million citizens whose voices have been silenced by felony disenfranchisement laws across the United States. 75 percent of these disenfranchised voters are no longer in prison, but are still unable to vote.

    Unwilling to accept the denial of his fundamental right to vote, Mr. Newby is a named plaintiff in a new lawsuit filed by the Campaign Legal Center, alongside a team of pro bono and civil rights litigators, that could finally turn the page on a dark history of discriminatory felon disenfranchisement in Alabama and nationwide.

    Alabama’s Strict and Discriminatory Felon Disenfranchisement Regime

    Alabama has one of the most severe and discriminatory felon disenfranchisement laws in the nation: it is one of only 12 states that permanently disenfranchise some or all citizens convicted of felony offenses and, as a result, disenfranchises 7% of its total voting age population and 15% of its black voting age population.