Voting Rights

  • 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.

  • April 21, 2017
    Guest Post

    by Anna Bodi, Partner Legal Fellow, The Campaign Legal Center

    This week, members of the New Hampshire House Election Law Committee heard public testimony on a new bill that would impose new proof of residency requirements on voters attempting to register within 30 days of an election. New Hampshire is just one of the 29 states this year that have introduced a total of more than 85 bills restricting access to registration and voting.

    Recent actions by the current presidential administration have laid the groundwork for this flurry of voter restrictions. Since before he assumed office, President Trump has claimed, without evidence, that millions of illegal votes were cast in the 2016 election. After assuming office, Trump said he would call for a task force - led by Vice President Mike Pence - to investigate the issue of voter fraud.

    In reality, studies have proven that there is no evidence of widespread voter fraud, and both Republicans and Democrats have outwardly stated that it is not a problem in our democracy. Meanwhile, the Department of Justice’s (DOJ) recent withdrawal of its discriminatory intent claim in the Texas voter ID case is a signal to states that this DOJ will not vigorously enforce the Voting Rights Act.

    Though Trump’s voter fraud investigation has not materialized, more states have seized this moment to pass restrictive voting laws that supposedly target (nearly nonexistent) in-person voter fraud. Indeed, lawmakers are seizing on the mere “perception” of voter fraud—created by supporters of voter ID laws and amplified by the President’s recent statements—to justify voting restrictions. Thus, state legislators continue to introduce and push voting restrictions despite numerous rulings last year—in Texas, North Carolina, Wisconsin and North Dakota—striking down many such laws as discriminatory and unduly burdensome. Rather than refocusing their energies of electoral modernization measures—which could expand and improve our electoral system—legislators in many states have doubled down on voter restrictions, tweaking them slightly in hopes of judicial approval.

  • April 11, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Pamela S. Karlan, ACS Board Member and Kenneth and Harle Montgomery Professor of Public Interest Law, Co-Director of the Supreme Court Litigation Clinic, Stanford Law School

    “Always it is by bridges that we live,” the poet Philip Larkin wrote. One of the problems with the way we have tried to build a more just constitutional law is our failure to draw lessons across constitutional subfields – to build constitutional bridges.

    Several years ago, I published an article in the Indiana Law Journal called “Taking Politics Religiously: How Free Exercise and Establishment Clause Cases Illuminate the Law of Democracy.” It is an example of what I mean by building constitutional bridges: I used themes developed in the religion clause cases – like the “radical” idea that “[f]ree people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct,” that the Constitution should combat the creation of an outsider class and that it should prevent capture and exploitation of the machinery of government – to suggest how we ought to think about political party regulation, redistricting and campaign finance.

    Now, I want to begin a conversation about two areas of law that might seem rather disconnected from one another: voting rights and reproductive justice. I often joke about that connection: politics, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology and often a need – as the Supreme Court put it in a redistricting case – to “pull” and “haul” rather indelicately at the very end. And of course, it often involves somebody getting screwed.

  • March 21, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

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

    As Judge Neil Gorsuch faces his confirmation hearings to be the next Supreme Court Justice, the Trump White House and Republican senators continue to say that he is a strong conservative in the mold of Justice Antonin Scalia, who he would replace. If Judge Gorsuch’s views on the constitutional right to vote are the same as Justice Scalia’s, however, there is great cause for concern.

    The right to vote is the most important and fundamental right we enjoy. It provides the foundation for our democracy.

    Yet Justice Scalia’s rulings were extremely restrictive when it came to voting rights. For instance, in 2008, when the Court refused to strike down Indiana’s strict voter ID law, Justice Scalia wrote a separate opinion to complain that the Court’s main opinion did not go far enough. While the Court’s ruling upholding the law left the door open to future lawsuits with better evidence, Justice Scalia would have closed off any future challenges to a voter ID requirement. He said that it did not matter if a handful of voters might find it more difficult to participate on Election Day. The harm to the constitutional right to vote for any particular individual was no big deal if the law did not impose a burden on the electorate as a whole.