Voting rights

  • October 17, 2013
    Guest Post

    by Paul M. Smith, Partner, Jenner & Block. Mr. Smith is a longtime Supreme Court practitioner and a member of the ACS Board.

    As the lawyer who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, I was both fascinated and pleased to hear that Judge Richard Posner – the author of the Seventh Circuit majority opinion affirmed by the Supreme Court in Crawford v. Marion County Elections Board – has now publicly stated that he was wrong.  It is refreshing, if not unprecedented, for a jurist to admit error on such a major case. 

    I was a little less pleased to see that he attempted to excuse his error by blaming the parties for not providing sufficient information to the court.  As he put it in an interview quoted in the New York Times, “We weren’t given the information that would enable that balance to be struck between preventing fraud and protecting voters’ rights.”  Really?  The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately: “Let’s not beat around the bush:  The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”

    That insight about the purpose of the law was supported by this information, all of which was provided to Judge Posner and the Seventh Circuit:

    There had never been a single known incident of in-person voter impersonation fraud in the history of Indiana and there have been precious few nationally – yet the Indiana law targeted only in-person voting.

    The law was passed immediately after Republicans took complete control of the legislature and governorship of the State of Indiana. 

    Every Republican legislator supported the law, while every Democratic legislator opposed it.

    But what about the effects of the law?  Well, Indiana Secretary of State Todd Rokita, the primary supporter of the bill, himself stated that there are certain “groups of voters for whom compliance with [the Voter ID law] may be difficult” because they are “registered voters who do not possess photo identification; who may have difficulty understanding what the new law requires of them; or who do not have the means necessary obtain photo identification.”  As examples he mentioned “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.”  Moreover, the district court had conservatively estimated that there were 43,000 voting-age Indianans without a state-issued driver’s license or identification card, and that nearly three-quarters of them were in Marion County, which includes Indianapolis.  In other words, the persons most likely to be affected were poor and minority residents in the state’s largest city, who tended to vote Democratic and lived in a city that was trending Democratic. 

  • September 19, 2013
    Guest Post

    by Janai S. Nelson, law professor, associate dean for faculty scholarship, and associate director of the The Ronald H. Brown Center for Civil Rights and Economic Development,  St. John's University School of Law. She is also author of the article, “The First Amendment, Equal Protection and Felon Disenfranchisement: A New Viewpoint.” This post is part of our 2013 Constitution Day symposium.

    “Constitution and Citizenship Day,” as it is formerly called, was once known only as Citizenship Day in commemoration of the countless immigrants who have chosen to uphold the U.S. constitution and claim the nationality of this country.  One of the most important badges of citizenship, however, is not enshrined in the constitution -- the right to vote. 

    African Americans, women, and persons as young as 18 years of age were all granted voting rights through constitutional amendments.  Those amendments established the conditions upon which the right to vote could not be denied but did not grant a universal, affirmation, and equal right to vote for all citizens.  Indeed, the need for serial amendments to create the diverse electorate we see today is evidence of this constitutional void. 

    The current assault on voter participation is also proof of this void.  If there were an affirmative right to vote in the Constitution, it would be harder for Republican-led state legislatures to enact voter ID laws that disproportionately disenfranchise the poor, minorities, students, and the elderly, more difficult for states like Florida to carelessly purge eligible voters from registration rolls, and a greater obstacle for election officials to limit participation by curtailing early voting and over-regulating registration procedures. 

    Why then should the right to vote remain absent from one of the most revered constitutions in the world?  It doesn’t have to.  Earlier this year, Congressmen Mark Pocan (D-Wis.) and Keith Ellison (D-Minn.) introduced a bill to amend the Constitution to include an affirmative right to vote.  This idea has long been supported by organizations like Fair Vote which backs the current bill through its Promote the Vote campaign -- and its time has come. 

    As I’ve written for Reuters here, “at no time in recent history has the need for a right-to-vote amendment been more pronounced.  The [Supreme] court’s ruling earlier this year in Shelby County v. Holder, disabling a key provision of the Voting Rights Act of 1965, calls for dramatic congressional action to both rehabilitate that landmark act and recommit to our constitutional ideals.”  We would be remiss if we did not use this moment to reflect on the greatness of our Constitution and also flag its weaknesses.  Indeed, there is no better time to kick-start a national discussion on the proposed right-to-vote amendment than during this celebration of both our Constitution and our citizenship, as neither is truly complete without an explicit right to vote.

  • September 18, 2013
    Guest Post

    by Edward A. Hailes, Jr., Managing Director and General Counsel, Advancement Project. This post is a part of our 2013 ACS Constitution Day symposium.

    As the nation observes Constitution Day, most Americans would probably be surprised to learn that there is no provision of the Constitution or federal law that explicitly and affirmatively guarantees all citizens the right to vote. While the Constitution mentions the right to vote more than any other – forbidding it from being abridged based on race, gender, age or ability to pay a poll tax – it contains no affirmative language making that right explicit. In fact, the U.S. is one of only 11 of the 119 democratic countries in the world that do not explicitly provide the right to vote in their Constitutions. What’s more, the US Supreme Court decision in Shelby County vs. Holder, which acknowledged the existence of persistent discrimination in voting, opened the door for new barriers to voting to emerge in states across the country.

    Nowhere is this more evident than in North Carolina, where Governor Pat McCrory recently signed into law legislation (HB 589) that enacts dozens of changes that will make it harder to vote. Among other provisions, the recently signed measure implements a strict voter ID requirement; cuts early voting by a full week; eliminates same-day registration; allows voters to be challenged by any registered voter in the same county, rather than precinct; bans 16 and 17-year-olds from pre-registering to vote; repeals a state directive that high schools conduct voter registration drives; prohibits paid voter registration drives; and prevents counties from extending poll hours to accommodate long lines.

    Each of these changes, on their own, would already be considerably harmful to the voting rights of North Carolinians. Taken together, it is the worst voter suppression law in the country. It viciously targets nearly every aspect of the voting process – chipping away at who can vote, where they vote, when they can vote, and how they vote. With the stroke of a pen, Gov. McCrory has transformed North Carolina from a state with one of the nation’s most progressive voting systems, in which we saw some of the highest voter turnout rates of the last two presidential elections, into a state with the most draconian policies we’ve seen in decades. The law will disproportionately impact communities of color, seniors and students.

  • August 29, 2013
    Guest Post

    by Janai S. Nelson, law professor, associate dean for faculty scholarship, and associate director of the The Ronald H. Brown Center for Civil Rights and Economic Development,  St. John's University School of Law. She is also author of the article, “The Causal Context of Disparate Vote Denial” on the Voting Rights Act. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.

    The commemoration of the historic March on Washington for Jobs and Freedom is a reminder both of how far we've come as a nation and how far we’ve yet to go.

    The 1963 march signaled the beginning of the end of America’s racial apartheid regime and brought over a quarter of a million citizens together, largely African-Americans, in one of the nation’s largest human rights demonstrations.  The power of their presence and the movement they represented forced the nation’s leaders finally to allow the words of the American constitution to ring with unprecedented truth. 

    However, many of the legal victories of the civil rights movement -- affirmative action, voting rights, and equal employment opportunities -- have been scaled back by the Supreme Court in recent years.  The real change in our democracy envisioned by Dr. Martin Luther King Jr. and others requires immediate and sustained attention from our legislators and advocates.  It means strengthening the Voting Rights Act by reinstating federal oversight of our nation’s most troubled voting locales.  It also means articulating an affirmative, equal right to vote, and making voter registration automatic. 

    These are fundamental steps to ensure that the commemoration of the march and King's dream speech is more than just a remembrance but rather is a call to action. As I’ve written in this post on Reuters, “The promise held in King’s dream is to wake up one day to its reality — not to slumber while discrimination marches on. The immediate step we can take is to reverse the continuing assault on voting rights and expand participation in our democracy. Rehabilitating the Voting Rights Act of 1965, following the Supreme Court’s recent decision in Shelby County v. Holder, which struck down one of the law’s most important provisions, should be at the top of this agenda.”  The full text on this post, “King’s Deferred Dream of Democracy,” is here.

  • August 29, 2013
    Guest Post


    by Erik Lampmann, Senior Fellow for Equal Justice, the Roosevelt Institute Campus Network. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.

    The March on Washington for Jobs and Freedom August 28th, 1963 shook the foundations of racist American society.
    For one, the mobilization of almost 250,000 individuals on the National Mall threatened entrenched white interests. It forced the Kennedy administration to take meetings with Martin Luther King, Jr. and other civil rights leaders which eventually led to a strong(er) federal civil rights bill in 1964.

    In many ways, the March punctuated the Civil Rights Movement.
    Coming two months after the assassination of NAACP Field Secretary Medgar Evers in Mississippi and one month after a church bombing which led to the death of four young black girls in Birmingham, the convening power of the March was able to unify the voices of the Southern Christian Leadership Conference (SCLC), the Student Nonviolent Coordinating Committee (SNCC), the Congress for Racial Equality (CORE), and the Negro American Labor Council under one banner.

    In the face of mainstream media debates on the merits of the March, its aims, and its successes, it’s important to remember the first march 50 years ago was originally conceived as an economic justice mobilization. It’s entirely accurate to argue that the March was situated within the Civil Rights Movement writ-large. That said, it’s perhaps more accurate to focus on the March’s unparalleled critique of economic inequality.