Voting Rights

  • August 23, 2017
    Guest Post

    by Matthew Segal, legal director, ACLU of Massachusetts

    The Trump Administration has embarked on a campaign of voter suppression. Its actions, including creating a Voter “Integrity” Commission fueled by false claims of voter fraud, and filing a brief defending Ohio’s voter purges, seems not just destined but designed to keep Americans from voting. This campaign risks eroding the voting rights of historically disenfranchised groups of people not only overtly but also insidiously, in ways that go well beyond any single voter suppression measure.

    The insidious nature of these efforts is that they draw our collective attention to malicious attempts to keep people of color and young people from exercising their right to vote. This focus, in turn, can desensitize us to disenfranchisement that is needless, yet not malicious.

  • August 17, 2017
    Guest Post

    by Franita Tolson, Professor of Law, University of Southern California Gould School of Law

    Under the National Voter Registration Act (“NVRA”), states can remove an individual from the voter rolls if the person confirms, in writing, that he or she has moved, or if he or she has failed to respond to an address verification notice and has failed to vote in two consecutive federal elections.  52 U.S.C. 20507(d).  The NVRA is clear, however, that individuals cannot be removed solely for failing to vote.  52 U.S.C. 20507(b)(2). At issue in A. Philip Randolph Institute v. Husted, which will be argued this fall before the U.S. Supreme Court, is whether a state can use a person’s failure to vote as a trigger to send the address verification notice required by section 20507(d).  Under 20507(c), states are free to contract the post office to obtain the names of those individuals who have filed a change of address form and then send notices to those individuals.  In addition to obtaining names from the post office, Ohio also sends notices to those voters who have not engaged in any “voter activity” for two years, such as filing an address change on a voter registration card or with a state agency, or voting, either provisionally, through an absentee ballot, or in person on election day.

  • July 10, 2017
    Guest Post

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    While doom-and-gloom seems to dominate voting rights news these days, there is also positive work happening on the ground to enhance the right to vote. That is the goal of a lawsuit in Massachusetts, showing the importance of playing offense instead of defense in an effort to expand democratic participation.

    Voters in Massachusetts, along with the ACLU, are challenging Massachusetts’s 20-day registration deadline. Under the law, a voter may not cast a ballot on Election Day unless he or she has registered at least 20 days in advance of the election. The plaintiffs in Massachusetts argue that the government has no need for this registration deadline and that requiring people to register ahead of Election Day deprives those who do not comply of their constitutionally-protected right to vote. They literally cannot vote if they do not register ahead of the election and yet given modern technology, the state has no need for the 20-day requirement.

    The plaintiffs have already won, in part. Just before the 2016 election, state judge Douglas Wilkins found that Massachusetts had failed to demonstrate a “real reason, grounded in data, facts, or other evidence,” for the registration deadline. The court noted, “The right to vote is fundamental, as guaranteed by the Massachusetts Constitution.” The registration deadline deprived the three plaintiffs of this fundamental right. The court therefore allowed them to cast their ballots even though they had not registered in time. Yet that decision did not resolve the ultimate question of the constitutionality of a registration deadline before Election Day. The court is now considering that question, hearing testimony from voters, election experts, and state officials.

  • May 23, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    Much of the discussion about voting rights during the upcoming ACS National Convention will likely revolve around how to fight back against new measures of voter suppression. And for good reason. The Trump administration has already signaled its desire to “fix” the so-called problem of “election integrity,” creating a sham commission to study the issue. We already know what the commission will find with Kansas Secretary of State Kris Kobach leading it: embellished anecdotes of integrity concerns to justify ever-more restrictive voting rules.

    But while we must fight back against measures that make it harder to register and vote, that cannot be the only aspect of our efforts. In fact, it should not even be the biggest part. If we use up our resources putting out each successive fire in the voting rights world, we will fail to move forward with more positive measures to make voting as easy and convenient as possible for everyone who wishes to participate.

     Several states and localities are coming up with innovative ways to expand the electorate and open up the election process. The movement to adopt automatic voter registration, which Oregon showed can help to improve turnout, is going strong. Online voter registration is now a reality in the majority of states; the lagging states should update their registration system.

    Some states, like Virginia and Alabama, are easing their harsh felon disenfranchisement rules. Florida voters will have the opportunity next year to limit their own felon disenfranchisement law, which is currently among the worst in the nation in preventing over a million people from voting.

  • May 17, 2017
    Guest Post

    by Julie Ebenstein, Staff Attorney, Voting Rights Project, ACLU

    The United States has a long, persistent history of racial discrimination in voting. It is a record that we still fight in the courts and have seen significant progress pushing back on. Just yesterday, the Supreme Court let stand a Fourth Circuit decision that struck down North Carolina’s voter suppression law for purposefully discriminating against African-Americans and violating the Constitution. Last month, a Texas trial court determined, for the second time, that a statewide photo ID law purposefully discriminates on the basis of race.

    Despite our progress, it is undeniable that the U.S. has a turnout problem: too many eligible voters do not, or cannot, vote. Voter suppression and low voter turnout threaten the integrity of our elections and the health of our democracy.

    Why, then, amid drastic federal budget cuts, has the president ordered a commission to investigate “voter fraud” — an election bogeyman which has been widely debunked by legal experts, election administrators and elected officials from across the political spectrum. The commission only distracts from the real problem facing American voters. 

    Before we waste taxpayer funds on this commission, we must seriously consider its objective, which appears to be to undermine voters' overall confidence in America’s electoral process, or even to justify voter suppression.

    The commission is not only a distraction from real issues facing voters, but problematic for other reasons. For instance, it defines “improper voter registration,” as any situation where an individual who is not eligible to vote in a jurisdiction is still on the voter rolls, which sounds ominous, but often is not. The National Voter Registration Act (“NVRA”) sets strict standards for when and how voters may be removed from the voter rolls to protect against disenfranchisement. It prevents removal of voters for, for example, not voting in an election, and it requires election officials to notify voters before cancelling their registration.