Voting rights

  • July 24, 2014
    Guest Post

    by Franita Tolson, Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law; Faculty Advisor, Florida State University College of Law ACS Student Chapter

    The Civil Rights Act of 1964 is a landmark piece of legislation, responsible for eradicating much of the discrimination that racial minorities confronted in places of public accommodation such as hotels, restaurants and movie theatres; in seeking employment and applying for public benefits and in attending integrated public schools. Among its many accomplishments, the Act also laid the groundwork for nondiscriminatory access to the ballot. In particular, Title I of the Act provides that, “All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, etc. … shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude ....” Despite a promising start, this provision quickly fell into relative obscurity because the Voting Rights Act of 1965, passed a little over a year after Title I, imposed more stringent restrictions on racial discrimination in voting.

    Recent cases illustrate that the time has come to revisit Title I of the Civil Rights Act.  In Shelby County v. Holder, the Supreme Court invalidated section 4(b) of the Voting Rights Act which, together with section 5, required certain jurisdictions to preclear all changes to their electoral laws with the federal government before the changes could go into effect. The preclearance regime was a type of federal receivership for jurisdictions, mostly in the south, that had pervasively discriminated against African Americans in order to ensure that any new laws would not undermine minority voting rights. In the year since Shelby County, the loss of the preclearance regime has forced advocates to be more aggressive in using creative legal arguments in voting rights litigation. For example, in Frank v. Walker, a federal district court judge invalidated Wisconsin’s voter identification law, the first successful challenge to these restrictions using section 2 of the Voting Rights Act. Section 2 prohibits states from abridging the right to vote on the basis of race and applies nationwide.

    Like section 2, Title I of the Civil Rights Act stands as a possible litigation alternative to the preclearance provisions of the Voting Rights Act. In addition to its general requirement of nondiscriminatory access to the ballot, section 2(A) of Title I provides that, “No person acting under color of law shall in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote.” This provision prevents states from applying voter qualification standards differently to similarly situated individuals. 

  • July 18, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    Practicing the art of the possible rather than seeking perfection may be an inevitable feature of civil rights legislation. Even the greatest and most honored laws have loopholes; the Thirteenth Amendment, for example, allows slavery based on conviction of crime, any crime, and the exception was liberally exploited in the former Confederacy after Redemption. The Fifteenth Amendment seems to countenance discrimination on the basis of sex, and a protection in earlier versions of the right to hold office was stripped out before enactment.        

    Nevertheless, I’ll take them; I do not criticize the Reconstruction Amendments or their makers for being merely as good as was possible at the time. Similarly, it would not have been better to give up what was good in the 1964 Act simply because of its deficiencies. At the same time, recognizing a law’s compromises and gaps is essential to understanding its real import, and to thinking about how policy can be shaped to fully reflect the principle at stake.

    Among the important compromises in the bill are exemptions from the employment discrimination prohibition of Title VII for businesses of less than 15 people, and the exemption from the Public Accommodations provision of Title II for small, owner-occupied motels and lodging establishments. Presumably, these exceptions exist for the benefit of racists who grew up in a racist system through no fault of their own. Congress might reasonably have concluded that forcing close contact between racial minorities and these racists might have been more trouble than it was worth.  But these exemptions should have been time-limited; at this point, all but the oldest business owners spent their entire lives, or at least their adulthoods, in a nation were discrimination has clearly been against the law and public policy. The case for continued compromise of the policy is not obvious.

    Another major gap in the Civil Rights Act is the lack of protection against discrimination of members of the LGBTQ community. Clearly, this was no oversight. The desegregation struggle was to some degree a Cold War propaganda effort. Fair treatment on the basis of race was a “cold war imperative,” and so too was controlling the potentially subversive effects of sexual minorities. Thus, the 1965 Immigration Act, a close cousin of the Civil Rights Act, eliminated discrimination on the basis of race in immigration law, but simultaneously clarified and strengthened a prohibition on gay and lesbian immigration. The Civil Rights Act makes little sense unless it recognizes a fundamental human dignity and equality. The Americans with Disabilities Act and the Age Discrimination in Employment Act closed unjustified gaps in the coverage of the original law, and the prohibition on gay immigration is gone. Continuing to allow discrimination against gays and lesbians in the Civil Rights Act is indefensible.

  • July 17, 2014
    Guest Post

    by Jin Hee Lee, LDF Senior Counsel, NAACP Legal Defense and Education Fund

    *This piece was originally published in The Courier-Journal

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    Jin Hee Lee wrote a special introduction for ACSBlog:

    The Civil Rights Act of 1964 was a remarkable legislative achievement during a period of time in our Nation’s history when brave men and women literally risked their lives in pursuit of justice.  In the face of violence from white supremacists and segregationist mobs, civil rights heroes like Medger Evers and Dr. Martin Luther King, Jr., demanded that the United States fulfill its constitutional promise of equality for all Americans.  Yet, despite tremendous progress over the past 50 years, we still have a long road ahead in order to achieve the Civil Rights Act’s vision of equality.  Racially segregated schools continue to plague our public school system, and mass incarceration has wreaked havoc in the lives of too many African American families.  The catastrophic effects of the Great Recession have been felt all across the country, but have been particularly devastating to African Americans, who encounter even more barriers to gainful employment.  And, just last year, a deeply divided Supreme Court struck down a key provision of the Voting Rights Act of 1965 that had been instrumental in protecting minorities’ right to vote.  As we celebrate the 50th anniversary of the Civil Rights Act, we must also honor its legacy by continuing the struggle for freedom and equality so that, one day, racial justice can truly be achieved.  

    The passage of the Civil Rights Act of 1964 years ago was a monumental feat of bipartisan legislation during a crucial phase of American history. Only 10 years earlier, the United States Supreme Court denounced state-sanctioned racial segregation in the landmark decision Brown v. Board of Education. In the following years, untold numbers of American heroes risked their lives to end Jim Crow laws, with the moral conviction that "equality" is not a mere abstract term, but must necessarily be a lived experience. The Freedom Riders, the bus boycotters, the sitters in lunch counters — black and white, young and old — all were bonded by a common vision of an America that could, despite its flawed origins, embrace the equality and humanity of all its citizens.

    The implementation of this vision came at a heavy cost, especially in the years leading up to the Civil Rights Act.

  • July 15, 2014

    by Paul Guequierre

    With voting rights under attack across the country, the Obama administration plans to join lawsuits in Ohio and Wisconsin.  Last year the Supreme Court dealt a blow to voting rights in much of the South with the decision in Shelby County v. Holder. Joining the lawsuits in Ohio and Wisconsin marks the first time the Justice Department has intervened against statewide voting laws outside the areas that the Supreme Court freed from federal oversight.

    In Ohio, the Republican legislature passed laws that cut six days from the early voting period and ended same-day registration, among other restrictions. Secretary of State Jon Husted then announced that there would be no early voting on Sundays or on weekday evenings.  A federal judge restored early voting on the last three days before the election, but left in place the cut of three days from the early voting period and same-day registration. These cuts were clearly meant to disenfranchise minority voters and voters who don’t typically vote Republican.

    A brief filed recently by the law’s challengers uses detailed voting records to establish that blacks are far likelier than whites to take advantage of early voting. In 2012, 20 percent of blacks did so, compared to just 6 percent of whites.

    In Wisconsin, a strict voter ID law which was passed by a Republican dominated legislature and quickly signed into law by Republican Governor Scott Walker, was struck down by a federal judge, who ruled that it discriminated against black voters. The state has appealed the ruling.

  • July 10, 2014
    Guest Post

    by Jennifer L. Clark, Counsel, Brennan Center for Justice

    *This piece is cross-posted on Brennan Center's blog.

    Throughout 2014, we’ve seen courts step in to block laws restricting access to the ballot box. Courts struck down photo ID laws in Pennsylvania, Wisconsin, and Arkansas, and pushed back against efforts to cut back on early voting in Ohio. This week, all eyes are on North Carolina, where a federal court will decide whether to temporarily block the state’s 2013 omnibus election law — one of the most wide-reaching and restrictive voting measures in the country — before the November 2014 elections. 

    Before last June’s Supreme Court decision in Shelby County v. Holder, which gutted a core Voting Rights Act protection, North Carolina had to “pre-clear” all statewide election changes before putting them into effect. This meant the state had to show the laws wouldn’t discriminate against minority voters. After the Court’s ruling last summer, however, lawmakers around the country, including in North Carolina, seized the opportunity to pass a series of voting restrictions. North Carolina’s legislation slashes early voting days, eliminates same-day registration, gets rid of out-of-precinct provisional voting, imposes a strict photo ID requirement, and does away with pre-registration for 16- and 17-year-olds, among other changes. Except for the photo ID requirement, which is slated to be implemented in 2016, all of these measures will be in effect this November.

    The Department of Justice and multiple civic groups quickly challenged the law in federal court. A full trial on the merits of the challengers’ claims is scheduled for July 2015, but, seeking redress in advance of November, the law’s challengers filed motions this past May to temporarily block many of the worst new restrictions. This week, the court is holding hearings to determine whether to grant these motions, and thereby prevent the law from going into effect until a full trial can be held.