Voting Rights

  • 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.

  • 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.”