Voting rights

  • 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%. 

  • March 15, 2013

    by Jeremy Leaming

    The National Voter Registration Act (NVRA, also called the “motor voter” bill) was enacted to make it easier for people to register to vote. It promotes voter registration drives and requires states to permit people to register to vote via a simple postcard when they obtain or renew their drivers’ licenses or through the mail.

    But some states have chosen to move in the opposition direction. For example, Florida in its overhaul of voting procedures not only attempted to limit early voting, it sought to make it onerous for groups like the League of Women Voters to conduct voter registration drives. Arizona enacted a law that would make it more difficult for people to register through the mail, by demanding more proof of citizenship.

    The U.S. Supreme Court has already heard oral argument in a case challenging the landmark Voting Rights Act of 1965, which requires certain states and towns – those with a clear history of past problems – to obtain “preclearance” of any changes they make to their voting procedures to ensure they do not discriminate against voters because of race. Several of the high court’s right-wing justices appeared ready to strike the preclearance provision in Section 5 of the law. If that were to happen it would deal a significant blow to one of the nation’s most powerful tools to combat racial discrimination in voting.

    On Monday, the high court will hear oral argument in another case challenging the federal government’s constitutional power to protect the right to vote. In Arizona v. Inter Tribal Council of Arizona, Inc., the justices will consider an opinion from the U.S. Court of Appeals for the Ninth Circuit that invalidated the Arizona law, saying the NRVA cannot be undermined by the states.

    In a friend-of-the-court brief lodged with the Court, the League of Women Voters urges the justices to hold that the NVRA overrides states’ attempts to restrict voting.

    “States should not be allowed to play politics with the voter registration process, the key entry point for political participation in our democracy,” the League’s President Barbara Klein said in a press releaseannouncing the group’s brief.

    The Brennan Center and the Constitutional Accountability Center have also weighed in with an amicus brief urging the court to support the federal government’s constitutional authority to protect the right to vote.

     

  • March 7, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

    In my earlier guest blog on Shelby County, AL v. Holder, I suggested that the conservative justices of the Supreme Court would be tempted to offer a post-racialist narrative concerning the pre-clearance provisions of the Voting Rights Act. 

    The justices did not disappoint. Justice Anthony Kennedy asked whether Alabama should remain “under the trusteeship of the United States government.” Chief Justice John Roberts asked whether “the citizens in the South are more racist than the citizens in the North.” Both of these comments implicitly ask whether the long history of race has been atoned for once and for all.

    And then there was Justice Antonin Scalia’s statement on the Voting Rights Act. In explaining the almost unanimous consensus for the 2006 reauthorization of Section 5, Scalia said:

    Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

    On one level, this quote fits the post-racial narrative. Yet Justice Scalia intended a deeper message by invoking the rhetoric of “racial entitlement.” That message is the ahistorical belief that race-conscious analysis is immoral and leads to corrupt outcomes. Establishing this concept is part of a larger post-racial agenda (as we have seen already in the affirmative action debates), and the Voting Rights Act is the latest battleground. Yet, if applied to the right to vote, it will fly in the face of the plain text of the Constitution and our democratic consensus to insure equality in voting.

  • March 1, 2013

    by Jeremy Leaming

    Following oral argument in Shelby County v. Holder several court-watchers, to the consternation of some, wrote that the Voting Rights Act’s integral enforcement provision, Section 5, looked to be on the chopping block largely based on courtroom theatrics.

    But many of those court-watchers, such as The New York Times’ Adam Liptak, noted that it was indeed risky to make  predications based only on oral argument, while nonetheless pointing out that in 2009 in Northwest Austin Municipal Utility District v. Holder, Chief Justice John Roberts and other members of the high court’s right-wing bloc made it rather clear that Congress should revisit the formula used to determine what states are covered by Section 5.

    As Liptak noted, Congress did not revisit the formula. And what happened during oral argument earlier this week? You had the Court’s right-wing justices grousing over the same things they did in Northwest. So it doesn’t take much of a leap to figure Justice Anthony Kennedy, who asked how much longer must Alabama remain under U.S. “trusteeship” is ready to join Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito in striking Section 5, by ending the use of the formula. (Section 5 requires states and localities, mostly in the South, to get “preclearance” of any proposed changes to their voting laws and procedures to ensure that they do not have the effect of discriminating against voters. The Constitution’s 14th and 15th Amendments provide Congress the power to take appropriate action to ensure that states do not deprive people of liberty or discriminate against voters because of their race.)

    The Brennan Center’s Myrna Pérez writes that the “arguments themselves do not provide much predictive value,” and that little was discussed during oral argument “over what exactly Congress needed to do differently to have appropriately fulfilled its duties.”

    ACS President Caroline Fredrickson also told TPM’s Sahil Kapur that the “silver lining is ultimately oral arguments are rarely a predictor of outcomes of the case.”

    Yep, lots of folks were predicating Kennedy would save the day for the Obama administration’s landmark health care reform law the Affordable Care Act. And of course we know how that turned out.

    As noted on this blog numerous times, Section 5 is the power behind the Voting Rights Act and Congress has the constitutional authority to combat racial discrimination in voting. Section 5, reauthorized in 2006, has helped prevent states bent on suppressing the votes of minorities from doing so, including Alabama, South Carolina, Texas and Florida. Without Section 5, those states will have great leeway in pursuing schemes to dilute the minority vote.