Voting rights

  • April 29, 2013

    by Jeremy Leaming

    North Carolina, which last year voted to amend its constitution to ban same-sex marriages even though it already had a law doing that, is now on the verge on enacting one of the nation’s more onerous voter ID laws. 

    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.

  • April 18, 2013

    by Jeremy Leaming

    Whether Justice Antonin Scalia is toiling away in the cloistered halls of the Supreme Court or speaking before right-wing think tanks or groups of law school students he has over the years proven a knack for annoying large swaths of people. And does anyone believe Scalia cares?

    What Scalia has done is to tamp down a handful of Supreme Court reporters who for years assured us the conservative justice was the high court’s sharpest thinker and nimblest writer and witty too. Those reporters, however, have had to give up the narrative thanks in large part to Scalia’s increasingly cranky, bizarre, racially insensitive, and unnecessarily over-the-top commentary. It has also helped that a lot more people call out Scalia for his ridiculousness. He might thrill American Enterprise Institute or the Federalist Society, but others paying attention are increasingly seeing a serial offender, with a wobbly way of interpreting the Constitution.

    He’s on bit of a roll this year. In February during oral argument in Shelby County v. Holder, the case involving a challenge from a largely white community in Alabama to the Voting Rights Act’s integral provision, Section 5, Scalia said the Act perpetuates racial entitlement. But Scalia couldn’t stop there; he had to add flippantly that the reason Congress reauthorized the Voting Rights Act was that lawmakers couldn’t bring themselves to vote against a measure with such a “wonderful name.”

    What these offensive and flippant asides have to do with the constitutional and other questions before the high court is anyone’s guess. It’s likely the acidity was all theatrics.

    The high court in Shelby will hopefully decide the case by looking at the text and history of the Constitution, in particular the 14th and 15th Amendments, which give Congress great discretion  in creating and enforcing appropriate laws to ensure that states do not discriminate in voting. Scalia’s disdain for the Voting Rights was evident, so it is likely he’ll find a way to contort so-called “originalism” to argue for gutting the law’s primary enforcement provision. (Section 5 requires states and localities, mostly in the South, with long histories of suppressing the minority vote to obtain preclearance from a federal court in Washington, D.C. or the Department of Justice before altering their voting procedures, to ensure they do not intentionally or unintentionally discriminate against minority voters.)

    This week during a talk before some law students in Washington, D.C., Scalia piled on, telling the students that Section 5 is an “embedded form of “racial preferment.”

    George Washington University law school professor Spencer Overton pushes back against Scalia’s racially charged attack on the Voting rights Act.

  • March 21, 2013
    Guest Post

    by Gabriel J. Chin, Professor of Law, University of California Davis School of Law

    This week, the Supreme Court heard argument in Arizona v. The Inter Tribal Council of Arizona, a case at the intersection of two lines of cases which have been prominent on the Court’s docket in recent years. The case is an example of a challenge to Arizona’s apparently endless cornucopia of anti-immigrant legislation. It also tests measures which, according to some conservatives, are designed to preserve the integrity of the ballot box, but according to others are calculated to suppress the minority vote.

    The case involves Arizona’s Proposition 200, passed in 2004, which requires prospective Arizona voters to provide proof of United States citizenship before registration. But the federal National Voter Registration Act of 1993 directed the federal Election Assistance Commission to create a federal form for voter registration (current version here). That form requires applicants to provide a date of birth and other identifying information, and an oath that the applicant is a citizen, but does not require independent documentary proof of citizenship.  Federal law requires states to “accept and use” the federal form. The critical question is whether “accept and use” means that a properly completed form is sufficient for voter registration unless the state independently proves that it is fraudulent, or, rather, that the form is the beginning of an application process during which the state may freely add supplemental requirements and inquiries.

    A panel of the U.S. Court of Appeals for the Ninth Circuit, which included retired Justice O’Connor, invalidated Prop. 200’s proof-of-citizenship requirement, over a dissent by Chief Judge Kozinski. En banc, the Ninth Circuit held 9-2 that the requirement was invalid, this time with Chief Judge Kozinski in the majority. Both the panel and the court en banc Circuit upheld a separate provision of Prop. 200, requiring registered voters to show identification at the polls.

    It is common ground that the federal government has broad power over federal elections.  As the Brennan Center and the Constitutional Accountability Center wrote in a brief for me and other constitutional law scholars, under the Elections Clause (Article I, Section 4), Congress may regulate federal elections and supersede state electoral laws. The Framers recognized the national implications of state electoral improprieties, and granted the national government the power to protect itself.  Neither Arizona nor any of the justices questioned the century of precedents to this effect. Instead, the case seemed to turn on the intent of Congress.

  • March 19, 2013
    Guest Post

    by Spencer Overton, a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos.This piece is crossposted at The Huffington Post.

    I attended yesterday’s U.S. Supreme Court oral argument in the Arizona voter registration case.  The argument went well generally, but Justice Alito suggested the Justices would create a “crazy” double standard by requiring that Arizona election officials accept the federal registration form. 

    Alito’s concerns are unwarranted.  Arizona chose to create two standards when it chose to add special “proof of citizenship” to register. 

    The National Voter Registration Act requires that all states “accept and use” a single, uniform voter registration form for federal elections (states can also still use their own registration forms). 

    The Federal Form requires that prospective voters check a box and sign an affirmation that they are U.S. citizens under penalty of perjury. 

    Arizona, however, adopted a state law requiring “satisfactory proof” of U.S. citizenship to register, such as a birth certificate, U.S. passport, or state driver’s license that shows citizenship. As a result, Arizona rejected over 31,000 registrations that lacked its “proof of citizenship” -- including Federal Forms -- even though Arizona concedes it has no evidence that any of these individuals were non-citizens.

    My take is that Arizona must accept all Federal Forms that comply with the citizenship affirmation rules set by Congress. The federal Act was designed to expand participation in federal elections by streamlining the registration process with a simple, uniform Federal Form that prevents states from piling on additional hurdles to register.  Indeed, as Justice Sotomayor mentioned, Congress explicitly rejected an amendment that would have allowed states to require “documentary evidence” of U.S. citizenship. 

     

  • March 18, 2013
    Guest Post

    by Spencer Overton, Professor of Law at The George Washington University Law School and a Senior Fellow at Demos. He is the author of the book Stealing Democracy: The New Politics of Voter Suppression. This post is cross-posted at DemosBlog and the Huffington Post.


    With public attention focused on the Voting Rights Act, many have overlooked a second critical voting case being argued before the U.S. Supreme Court today.

    The latest case involves the simple question of whether Arizona can refuse to accept a federal voter registration form. But the stakes are much higher. A victory for Arizona could accelerate a nationwide trend of political operatives attempting to manipulate election rules for political gain, and could undermine the power of Congress to protect voting rights.

    Arizona Rejected Federal Registration Forms

    The National Voter Registration Act requires that all states “accept and use” a single, uniform voter registration form for federal elections. States can still use their own registration forms, but they must also accept and use the federal form. The purpose of the federal form is to increase participation by preventing states from erecting barriers to voter registration. 

    The federal form requires that prospective voters check a box and sign the form affirming they are U.S. citizens under penalty of perjury. Arizona, however, adopted a state law requiring “satisfactory proof” of U.S. citizenship to register, such as abirth certificate, U.S. passport, or state driver’s license that shows citizenship. 

    As a result, Arizona initially rejected over 31,000 voter registration applications—including citizens who registered using the federal form. Community-based registration drives were hit especially hard, because they rely on approaching individuals who may not be carrying a birth certificate or similar documentation (or unwilling to give a photocopy of these sensitive documents to a registration-drive volunteer). For example, community-based registration drives in Arizona’s largest county—Maricopa County—dropped 44%.