Voting Rights Act

  • October 9, 2015
    Guest Post

    by Deuel Ross, Fried Frank Fellow, NAACP Legal Defense and Educational Fund, Inc.

    On Friday, the NAACP Legal Defense and Educational Fund, Inc. (LDF), on behalf of our allies at Greater Birmingham Ministries and the Alabama NAACP, wrote a letter to the state of Alabama about its decision to close 31 of its Department of Public Safety (DPS) driver’s license-issuing offices. The state’s decision shuttered DPS offices in eleven rural counties: Choctaw, Sumter, Hale, Greene, Perry, Wilcox, Lowndes, Butler, Crenshaw, Macon, and Bullock. These eleven counties make up most of Alabama’s “Black Belt”—a region with large concentrations of African Americans, incredibly high poverty rates, and almost no public transportation.

    In our letter, LDF noted that there is a strong likelihood that Alabama’s actions violate the protections provided by the Voting Rights Act of 1965 and the United States Constitution. But what do driver’s license offices have to do with voting? A lot, actually.

    In 2014, Alabama began enforcing a strict photo ID law which requires voters to show a driver’s license or another form of photo ID in order to cast a ballot. Alabama did so despite the state’s own analysis, which found that at least  250,000 registered voters don’t have a driver’s license or other acceptable photo ID. One such voter was Willie Mims, a 93-year-old African American who was turned away from his usual polling place because he did not have a driver’s license. African Americans like Mr. Mims very likely account for a disproportionate share of those thousands of voters that the photo ID law may disenfranchise. In addition, the federal National Voter Registration Act requires Alabama’s DPS offices to provide voters with opportunities to register to vote. Alabama recently agreed to adopt measures designed to increase such opportunities for voter registration.

    In light of the close relationship between voting and driver’s license offices, and despite Alabama officials’ half-hearted denials, these closures will drastically reduce the number of locations where African-American voters can go to ensure their unfettered access to the ballot. These closings in the poorest, most rural parts of the state’s African-American community smack of the cavalier racism of the Jim Crow era and open yet another chapter in Alabama’s long and egregious history of suppressing the African-American vote.

  • October 8, 2015
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    The state of Alabama has once again relegated some of its citizens to second-class status.  The confluence of driver’s license office closures and a much maligned voter identification law fosters the dishonoring of Alabama’s black and impoverished citizens in a perpetual cycle of deprivation and struggle.

    The genesis of the recent strife begins with Alabama’s enactment of a voter ID law in 2011, requiring citizens to present a valid, government-issued ID to vote at polls beginning in 2014. One of the most common forms of ID satisfying the state law are driver’s licenses. Pursuant to the state’s own study conducted in 2014, 10 percent of registered voters – 250,000 citizens – lack any form of the required photo ID, and 20 percent of registered voters – 500,000 citizens – lack a valid Alabama driver’s license or non-driver photo ID.

    Ostensibly due to spending reductions in Alabama’s fiscal year 2016 budget, the Alabama Law Enforcement Agency (“ALEA”), of which the Driver License Division is a part, closed 31 part-time, satellite driver’s license offices. As a result of these closures, 28 of Alabama’s 67 counties will not have facilities to issue licenses to first-time driver’s license examinees or out-of-state transplants seeking an Alabama license. Those seeking license renewals may do so at county probate offices or online (yet those options present their own problems).

    Citizens and civil rights defenders decry the closures due to the disproportionate burden massed upon black citizens and the impoverished in the largely rural counties. The closures eradicate eight of the ten counties in Alabama with the highest percentages of non-white, registered voters. Indeed, those eight counties comprise the only counties where more than 75% of the registered voters are black citizens. A refined analysis portrays a more troublesome picture. While 80 percent of the counties with non-white voting majorities suffer the closures, only 35 percent of the counties with white voting majorities bear any consequences (20 of the 57 remaining counties in Alabama), thus leaving 65 percent of the counties with majority-white voters largely unaffected. This disparity in the closures’ impact starkly portrays the inequity in ALEA’s budget cutting.

  • September 14, 2015

    by Jim Thompson

    In The Washington Post, Rep. John Lewis praises the latest book from The Nation's Ari Berman, Give Us the Ballot. The book, he argues, explains why Congress must fix the Voting Rights Act “without passion or favoritism.”  

    In The American Prospect, ACS President Caroline Fredrickson argues that the taxi industry needs a legal overhaul to ensure the safety of vehicles, dependability of drivers and fairness of payment schemes.    

    Lynette Holloway at The Root reports that a black woman was committed to a mental institution after police officers rebuffed her claims that she owned the BMW which she was arrested for driving.

    In The New Republic, Rebecca Leber discusses enduring obstacles for same-sex couples in the South.

    Liz Seaton at Talking Points Memo warns against the recent initiatives of some state legislatures seeking to inject partisan politics into state legal systems. 

  • August 14, 2015
    Guest Post

    by Franita Tolson, the Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law.

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    The fiftieth anniversary of the Voting Rights Act of 1965 provides an opportunity to reflect, not only on its marveled history, but also on the next frontier of voting rights litigation and policy. The Act has faced unprecedented challenges in recent years, culminating in the 2013 U.S. Supreme Court decision of Shelby County v. Holder. In Shelby County, the Court invalidated the coverage formula of section 4(b) of the Voting Rights Act.  The coverage formula required certain jurisdictions, mostly in the south, to preclear all changes to their electoral laws with the federal government under section 5 of the Act.  The Court found that the formula unduly infringed on the states’ sovereign authority over elections because Congress had not updated the formula in over forty years, and racial discrimination in voting had substantially decreased over this time period. 

    Contrary to the Court’s assertions of post-racialism, the years since Shelby County have welcomed a considerable increase in the number of restrictions designed to undermine the right to vote. According to the Brennan Center, states have introduced 113 bills this year alone that limit access to registration and voting. There also has been litigation challenging voting restrictions in North Carolina and Texas, which enacted very restrictive voting laws immediately following the Shelby County decision.  Unsurprisingly, both the U.S. Department of Justice and private litigants have turned to section 2 of the Voting Rights Act to challenge these provisions after the Supreme Court crippled the preclearance regime of sections 4(b) and 5. Section 2 of the Act forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”  Unlike the preclearance regime, section 2 applies nationwide and allows plaintiffs to challenge a law after it goes into effect.

    The strategic decision by the Justice Department and private litigants to use section 2 to fill the gap left in the Voting Rights Act post-Shelby County has brought renewed attention to section 2’s constitutionality.  The Supreme Court has never directly addressed this issue, and critics argue that section 2 raises many of the same federalism concerns as the recently invalidated coverage formula.  Texas, in the current litigation over its voter identification law, explicitly argued that it is unconstitutional to apply section 2 to address the racially discriminatory effects of its voter identification law absent a showing that the law is intentionally discriminatory. So far, courts have been unresponsive to this type of argument, but very few courts have confronted the issue in the post-Shelby County world. 

  • August 11, 2015
    Guest Post

    by Julie Ebenstein, Staff Attorney, Voting Rights Project, American Civil Liberties Union

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    Just days before the 50th anniversary of the Voting Rights Act, we completed a three-week trial challenging North Carolina’s sweeping anti-voter law. 

    In 2013, soon after the U.S. Supreme Court struck down Section 4 of the Voting Rights Act - and with it, the preclearance protections of Section 5 - North Carolina passed an election law shocking in its lack of a valid purpose and its extensive abridgement of citizens’ right to vote.  The challenged provisions of the law reduced the number of days for early voting, eliminated same-day-registration, and prohibited out-of-precinct Election Day voting.  Cumulatively, the law is one of the most repressive elections bills seen in decades. The law exemplifies a “second generation” barrier to voting.  It created broad, structural impediments to electoral participation, in part on the basis of race, and will likely impact hundreds of thousands of voters in the upcoming presidential election.

    In the pre-2013 world, the law would not likely have survived Section 5 preclearance, and thus, would never have been implemented.  But the absence of Section 5’s protection has created a severe disadvantage for voters challenging state’s vote denial measures. Our lawsuit, filed the day the law was implemented, illustrates some of the obstacles to protecting voting rights in the post-Shelby era.

    Section 2’s prohibition on racial discrimination is one of the remaining tools to protect the franchise, but it requires that litigation take place after a law has already gone into effect. As such, the advantages of time and inertia have shifted back to the perpetrators of voter suppression and away from its victims.  Section 2 cases are fact intensive, time-consuming and resource-intensive undertakings.  With constant election cycles, there is no guarantee that the legality of state election laws will be determined before voters are irreversibly disenfranchised.

    The 2014 federal election provides numerous examples. In late 2014, we saw rapid-fire orders by the U.S. Supreme Court, instructing the Sixth, Fourth, Seventh and Fifth Circuits to put election-related decisions on hold until after the election.  Over the course of three weeks, the U.S. Supreme Court made four determinations that affected voting rights in key federal elections.  On September 29, 2014, the Court stayed an Ohio district court decision, upheld by a Sixth Circuit appeals panel, enjoining the state’s cuts to early voting.  The following week, on October 8, the Court stayed the Fourth Circuit mandate to reinstate same-day registration and out-of-precinct voting, after the district court declined to enjoin the practices.  The next day, the Court vacated the Seventh Circuit’s stay of a Wisconsin district court’s permanent injunction of the state’s strict voter ID law.  On October 18, the Court denied applications to vacate the Fifth Circuit’s stay of a decision enjoining Texas’s voter ID law.