Voting Rights

  • 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.

  • March 1, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center's blog

    by Anna Bodi, Partner Legal Fellow, Campaign Legal Center

    Texas has the nation’s strictest photo voter ID law in the nation, SB 14, which was found by three federal courts to disenfranchise more than half a million voters.

    The Campaign Legal Center has litigated the case challenging that law for several years now, on behalf of Texas voters and the League of United Latin American Citizens. The Department of Justice, throughout this process, previously sided with the plaintiffs’ claims that the law has a discriminatory purpose and discriminatory effects.

    But that is no longer the case. The DOJ notified CLC yesterday that after many years of vigorously challenging Texas’s voter ID law, it was dropping its claim that the law was enacted with the intent to discriminate.

    The move comes less than a week after the DOJ, in a joint motion with the state of Texas, unsuccessfully pushed to delay consideration of SB 14’s discriminatory purpose, relying on the mere introduction of a new bill, SB 5, in the Texas State Legislature to amend the Texas voter ID bill.

    The DOJ’s sudden reversal in position invites the question: What has changed?

  • February 9, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center's blog.

    by Molly Danahy, Partner Legal Fellow at the Campaign Legal Center 

    The 2016 elections were dogged by questions about the integrity of our electoral system – from false claims that millions of people voted illegally – to legitimate concerns about the first election in fifty years without the protections of the Voting Rights Act. Also, there have been new worries about foreign actors interfering in our political process. During the primary season and in the general election, voters raised concerns about purged voter registration lists and long lines. In addition to the hacking of emails by Russian actors, there is also evidence that hackers attempted to penetrate state voter registration systems across the country. With plenty of challenges in election administration to address, why did a House Committee vote yesterday to eliminate the Elections Assistance Commission (EAC) – an agency tasked with evaluating and improving the efficiency and security of federal elections?

    One of the EAC’s primary tasks is to assess and certify the integrity of electronic voting systems to ensure that they are functional, accessible and secure. The Commission accredits independent laboratories to test voting systems and provides voluntary guidelines to the states for assessing the health of their voting systems. It also tracks problems with election systems and creates accountability by providing public access to its reports and collecting and publishing data about election administration across the country. At a time when the public could use reassurance about the integrity of our elections, defunding the only federal agency devoted to secure election administration defies rational explanation. In a display of willful blindness to the public’s concerns, the sponsor of the bill to eliminate the EAC says he believes the agency has “outlived its usefulness and purpose.”

  • February 3, 2017
    Guest Post

    *This post updates the Aug. 6, 2015 piece, State Constitutions: The Next Frontier in Voting Rights Protection.

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

    On the 50th anniversary of the Voting Rights Act, in August 2015, I wrote that "A renewed, independent focus on state constitutions and their explicit grant of the right to vote would restore the importance of the most foundational right in our democracy." In the Trump era -- with false claims of widespread voter fraud and likely calls for new restrictive voting rules -- that reliance on robust state constitutional protection is more vital than ever.

    Reformers who care about protecting the right to vote face an uphill battle in the current political environment. The Trump White House, the Republican-led Congress, and even many conservative-controlled state legislatures are unlikely to enact meaningful voting rights reform in the near future. The Supreme Court, especially with a new conservative justice, is unlikely to alter its crabbed interpretation of U.S. constitutional protection of the right to vote. State courts are therefore even more important in vindicating the most fundamental right in our democracy by checking partisan abuses and attempts at entrenchment. They must recognize the robust right to vote that all state constitutions confer and construe them as providing stronger protection than the Constitution.

  • November 10, 2016

    by Katie O'Connor

    Putting politics aside (which I acknowledge is not the easiest thing to do right now), most people felt some sense of relief on the morning of Nov. 9, 2016. We did not wake up to a nail-bitingly close election, to a plane full of lawyers flying to Florida or Ohio or Pennsylvania, to lawsuits being filed over rigging and fraud and voter suppression. We did not wake up to a nightmare scenario like that of Nov. 8, 2000. Broadly speaking, our election system functioned the way it is supposed to function and the results reflected the votes cast by the people.

    But that is only the top line of the story. Beneath the surface, myriad issues deserve our attention.

    This was the first election in over 50 years where voters were without the protections of Section 5 of the Voting Rights Act and that almost certainly took its toll. Section 5 required federal approval for proposed voting changes in states and local jurisdictions with a history of discriminatory voting practices. This put the onus on the states to justify restrictions on the right to vote and put time on the side of voters whose rights would be protected until the state had proven that new rules would not have a discriminatory effect. The Supreme Court’s 2013 Shelby County v. Holder decision, striking down Section 5, opened the door to onerous voting restrictions and many states wasted no time passing them. As a result, voters in North Carolina, Arizona, Texas, and many other states had to navigate new burdens during this election and many citizens were undoubtedly disenfranchised as a result. In the coming months, we must determine how these laws ultimately affected the right to vote and whether the Voting Rights Act needs to be strengthened to prevent it from happening again.

    This was the second election in sixteen years that resulted in a split between the winner of the national popular vote and the winner of the Electoral College vote. As previous candidates in this scenario have done, the candidates this year knew the rules of the game and accepted that the Electoral College ultimately decides the election. Nevertheless, this result should induce us to revisit the fairness and utility of the Electoral College. There are valid arguments on both sides of the debate, but they all deserve a fair hearing.