Election Law

  • August 7, 2015
    Guest Post

    by J. Gerald Hebert and Nate Blevins. Mr. Hebert is the Executive Director and Director of Litigation at The Campaign Legal Center. Mr. Blevins is a Fellow at the Campaign Legal Center. The Campaign Legal Center partners with ACS for the Voting Rights Institute.

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

    Barely a page into his majority opinion in Shelby County v. Holder, Chief Justice John Roberts makes a claim that in any other context would seem unremarkable, even obvious: "Voting discrimination still exists; no one doubts that."

    The Chief Justice was at least half right: The overwhelming evidence indicating that "voting discrimination still exists" is beyond debate. What's unclear, however, is whether "no one doubts" such discrimination still exists. In fact, the Chief himself seems to doubt it quite a bit.

    In Shelby, the Court's task should have been straightforward. In the past, the Justices had held consistently that "Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." As a result, all the Court needed to decide was whether the Voting Rights Act’s Section 4 preclearance formula (as applied through Section 5) was a "rational means" of enforcing the guarantees of the Fifteenth Amendment. Indeed, the Court had little difficulty making that determination prior to Shelby County: It upheld the Voting Rights Act's preclearance regime first in South Carolina v. Katzenbach in 1966 and affirmed it again 14 years later in City of Rome v. U.S. Both times, it rejected claims that the VRA exceeded Congress's power to enforce voting rights, going so far as to call the choice to extend the VRA "unassailable" and "plainly a constitutional method of enforcing the Fifteenth Amendment."

    So, what changed? How did the Court go from treating the VRA's constitutionality as "plain" and "unassailable" to having, as the majority put it in Shelby, "no choice but to declare [the preclearance provisions] unconstitutional"?

  • August 6, 2015
    Guest Post

    by Katherine Culliton-González, Senior Attorney & Director of Voter Protection, Advancement Project

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

    Fifty years ago today, the Voting Rights Act of 1965 (“VRA”) was signed into law. Fifty years ago, across the South brave men, women and children stood up for the fundamental right to vote and put their lives on the line. Some were injured, some lost their lives, and they never stopped marching. They sang “ain’t nobody going to turn me around,” and they meant it. Thanks to their bravery and belief in democracy, we now celebrate the 50th anniversary of the most effective piece of civil rights legislation.

    The 1965 VRA immediately reversed the inability of African Americans to register and vote in the South and put a stop to the English-only literacy tests faced by the Puerto Rican community in the North. Since then, numerous forms of racial discrimination in voting have been stopped by the provisions of the 1965 VRA, and our nation has seen dramatic change in the ability of people of color to participate in our democracy. Yet in the past few years, we are retrogressing.

    In 2015, many African American men, women and children have been beaten and murdered by police, and this June in Charleston, South Carolina, nine were fatally shot by an armed civilian in a church that was a refuge during antebellum times and during the civil rights movement. Although people of color represent the emerging demographic majority with concurrent potential political power, there is a backlash against immigrants, the majority of whom are Latino. Mothers and their children fleeing violence in Central America have been illegally held in detention centers, and Congress still refuses to even hold a vote on immigration reform. The confederate flag is coming down, but the fight to restore equality is by no means over. Perhaps not coincidentally, when it comes to voting rights and the ability to elect candidates who truly represent the interests of communities of color, we are also retrogressing.

  • August 6, 2015
    Guest Post

    by Ana Choi, executive online editor, Harvard Law and Policy Review

    *This post originally appeared on the blog of the American Constitution Society’s official journal, the Harvard Law and Policy Review (HLPR).

    In commemoration of the 50th anniversary of the Voting Rights Act, HLPR has published a new article in which Ryan P. Haygood exposes the damage caused by Shelby County in the past two years.

    Fifty years ago today, the landmark Voting Rights Act of 1965 (“VRA”) was signed into law. The VRA was one of the crowning achievements of the civil rights movement, and for the next several decades, it played a crucial role in the fight against discrimination and the advancement of voting rights for minorities. Yet, in the 2013 case Shelby County, Alabama v. Holder, the Supreme Court halted and reversed the march of progress by striking down Section 4(b) of the VRA as unconstitutional. In doing so, the Supreme Court acted not only against its own precedent but also against the judgment of Congress—based on a vast and overwhelming amount of evidence—that the protection of the VRA was still needed. As can be seen in the 2014 HLPR articles by James Blacksher & Lani Guinier and Daniel P. Tokaji, academics and practitioners decried the Supreme Court’s decision and warned of the consequences that would follow. Sure enough, Shelby County gave free rein to states that had previously been restrained by the VRA, and many wasted no time in enacting discriminatory voting laws. 

  • August 6, 2015
    Guest Post

    by Mimi Marziani. Ms. Marziani is the Legal Director of Battleground Texas and teaches “Election Law and Policy” at University of Texas School of Law. All views are her own.

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

    You may be tempted not to think too deeply about the Fifth Circuit’s decision yesterday, affirming that Texas’s photo ID law disparately burdens Black and Latino voters and thus violates Section 2 of the Voting Rights Act. Perhaps you just want to celebrate the result: that ‒ unless appellate review dictates otherwise ‒ Texas’s discriminatory law will be reformed. Or, maybe you are tired of hearing about Texas this week. On Monday, our attorney general, Ken Paxton, was indicated for securities fraud (oops) and on Tuesday, former governor Rick Perry failed to make the cut for the first GOP debate (famously, oops).

    But the Fifth Circuit’s opinion underscores truths about voting in Texas that, like the Lone Star State itself, cast an oversized shadow on election law and policy nationwide.

    To start: As the court recognizes, numerous empirical studies confirm that increasing the cost of voting decreases turnout. This is particularly true for low-income citizens who are, in the Fifth Circuit’s words, the “most cost sensitive.” The Texas photo ID law operates to impose severe burdens upon the poor, who are wildly less likely to have one of a few types of IDs that satisfy Texas’s law such as a driver’s license or passport, and cannot afford the necessary underlying documentation. As one voter put it during trial, before paying $42 for a birth certificate so she could get an ID, she had to weigh the significant costs to her family, explaining that “we couldn’t eat the birth certificate, and we couldn’t pay rent with the birth certificate.” Understandably, most people in that situation will not vote. The rent is too damn high.

    Moreover, as the Fifth Circuit detailed, due to historical discrimination, Black and Latino Texans are, on average, less likely to graduate from high school, more likely to be unemployed, and more likely to be in poor health. These factors lead to wide income gaps — 29 percent of Blacks and 33 percent of Latinos live below the poverty line, compared to just 12 percent of Anglos. This means that the ID law’s burdens on poor voters are disparately felt by communities of color.

  • August 5, 2015
    Guest Post

    by William R. Yeomans, Fellow in Law and Government at American University Washington College of Law and a former acting Assistant Attorney General for Civil Rights

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

    Access to the ballot should not be a partisan issue. Republicans, however, have teed up ballot access as a defining partisan issue. Just as this emphasis placed renewed pressure on our laws against racial discrimination, five justices fulfilled a longstanding conservative goal by disabling the requirement that states and localities with extensive histories of racial discrimination seek approval of voting changes from the federal government. Shelby County v. Holder lifted the preclearance requirement, unleashing jurisdictions to adopt photo ID laws, restrictive registration measures, shortened voting periods, and other measures that disproportionately restrict the opportunities for minority voters to cast ballots. Jurisdictions have concocted thoroughly debunked allegations of in-person voter fraud and unconvincing administrative cost justifications in support of these restrictions. As a last defense, they have sometimes conceded the partial truth – that these restrictions are designed to discourage Democrats from voting, as if that partisan purpose excuses their racial impact.

    How did we reach this point where electoral partisanship is so closely entangled with race? After all, the history of our nation is one of struggle to expand the franchise to incorporate once excluded segments of the electorate. We gradually and often painfully shed voting restrictions on non-property owners, the illiterate, women, and 18-to-20-year-olds. Twice we sought to guarantee the right to vote without regard to race – first through the Fifteenth Amendment and nearly a century later through the Voting Rights Act. The undeniable message of this progression is that the country gradually embraced the notion that every citizen of sufficient age, sound mind and (in too many states) non-felonious criminal record should be permitted to vote.

    Yet, partisan consequences already burdened the mind of President Lyndon Johnson when he signed the Voting Rights Act in 1965, noting that he feared his signature would hand over the South to the Republican Party. Indeed, as Democrats nationally became the party of civil rights, the once Democratic leaders of segregated southern states turned to the Republican Party, whose presidential nominee in 1964, Barry Goldwater, had opposed the 1964 Civil Rights Act. The Republican Party, led by Richard Nixon in 1968, saw political advantage in catering through its southern strategy to the backlash against the civil rights movement, Brown v. Bd. of Education and its progeny, and the civil rights laws of the 1960s.