Voting Rights

  • September 6, 2016
    Guest Post
    by Allegra Chapman, director of voting and elections, Common Cause
     
    Election Day, every school kid learns, is the one day when we are all truly equal and when we come together to make decisions that impact the whole country.
     
    But real equality – and real confidence that we can achieve it – requires that the ballot box be readily accessible to every eligible voter and that every vote be counted as cast. To make that happen, we need elections officers, poll workers, and rank-and-file voters themselves to administer the process legally and engage in it fairly. It also helps to have candidates, particularly for the commander-in-chief’s office, who follow and respect the rules.
     
    That is why it is especially troubling when politicians display disdain for the electoral process by urging their supporters to engage in illicit behavior that games the system.
     
    Last month, Donald Trump called on his supporters to up-end the rules. “I hope you people can sort of not just vote on the eighth [but] go around and look and watch other polling places and make sure that it is 100 percent fine,” he told attendees at a rally in Pennsylvania. “We are going to watch Pennsylvania. Go down to certain areas,” he warned, “and watch and study, make sure other people do not come in and vote five times.”
     
  • August 26, 2016
    Guest Post

    Thomas Wolf, Counsel, Democracy Program, Brennan Center for Justice at NYU School of Law

    *This post originally appeared on the Brennan Center for Justice website. 

    Partisan gerrymandering has long befuddled the courts. Although judges have recognized the harm of the practice, they have been unable to agree on a standard for policing it. But for the second time in a year, a partisan-gerrymandering challenge has cleared a critical hurdle.

    Earlier this week, voters challenging the drawing of Maryland’s 2011 congressional map got the green light to proceed with their First Amendment claim when a panel of three federal judges voted 2-1 to deny a motion to dismiss from Maryland’s attorney general. The voters — plaintiffs in the long-running case Shapiro v. McManus — will now be able to conduct discovery in preparation for a trial. The victory gives new momentum to a case that, along with a partisan-gerrymandering challenge pending in Wisconsin, could soon be headed for the U.S. Supreme Court, where the Justices will have their first opportunity in more than a decade to decide whether partisan gerrymandering violates the Constitution.

    The panel’s opinion focuses on the legal sufficiency of the plaintiffs’ complaint, which challenges the 2011 congressional redistricting plan enacted by the Maryland General Assembly. The plaintiffs alleged the legislature deliberately used information about voters’ partisan affiliations and voting histories to flip Maryland’s Sixth District from an otherwise reliably Republican stronghold into a safe Democratic seat, all in a successful attempt to punish Republican voters for casting ballots for their party’s candidates. On those facts, the panel ruled, the plaintiffs stated a claim that could go to trial, endorsing the plaintiffs’ theory that these kinds of districting machinations violate the First Amendment.

    The First Amendment problem with Maryland’s redistricting, the panel explained, was that it diluted the plaintiffs’ votes — that is, made their votes less powerful than other voters’ — by placing them in districts where they were outnumbered and repeatedly outvoted by Democrats, and did so simply because the plaintiffs had voted Republican in the past. That dilution was an example — albeit a novel one — of the kind of retaliation for political speech and association that the First Amendment bars.

  • August 24, 2016

    By Kevin Battersby Witenoff

    Julie Ebenstein at the ACLU Blog reports a federal court held the system currently in place for electing school board members in Ferguson, Mo. violates the Voting Rights Act and systematically disadvantages African-Americans.

    Days after issuing an injunction prohibiting the Education Department from enforcing antidiscrimination guidelines intended to protect transgender students, a lawsuit aiming to deny expanded access to medical care for transgender Americans has landed on the desk of Judge Reed O’Connor, writes The Editorial Board at The New York Times.

    Fiona Ortiz and Alistair Bell explain the consequences of a 2-1 decision from a panel of the 6th U.S. Circuit Court of Appeals that upheld a law eliminating Ohio’s early voting period in an article for Reuters

    The Department of Justice submitted a brief to a class action law suit asserting the United States’ current bail system unfairly discriminates against the poor, reports Lauren C. Williams of Think Progress.

  • August 15, 2016

    By Kevin Battersby Witenoff

    The Seventh Circuit Court was unwilling to extend Title VII non-discrimination protection based on sexual orientation, reports George M. Patterson at The National Law Review

    David G. Savage at the Los Angeles Times reports North Carolina and Wisconsin lawyers are attacking gerrymandered electoral maps that ensure suppression of voters of particular races and party affiliation.

    The Editorial Board at The New York Times shares the difficulties of citizens in Sparta, Ga. who experience overt voter suppression reminiscent of Jim Crow.  

    After a report released by the Department of Justice exposed the Federal Bureau of Prisons’ failure to appropriately monitor and control regulations in for-profit prisons, Carl Takei reexamines their necessity in an op-ed for The Marshall Project

  • August 10, 2016
    Guest Post

    by: Niyati Shah and Archita Taylor, Election Counsels at Project Vote

    As many have already noted, this year will be the first presidential election without the full protections of the Voting Rights Act (VRA). In the absence of some of the VRA’s key provisions, particularly Section 5, voting rights advocates have engaged in lengthy lawsuits across the country to contest some of the most egregious offenders of federal election laws and the Constitution.

    Last week alone, courts struck at the heart of state laws diluting the franchise in three different states – North Carolina, Texas, and Wisconsin. All three required a photo ID before casting a ballot. In each case, these laws were challenged under the equal protection clause of the Fourteenth Amendment, the Fifteenth Amendment, and Section 2 of the VRA. The Supreme Court requires that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Violations of Section 2 of the VRA can be established without showing discriminatory intent so long as plaintiffs show that the law has a discriminatory effect. Thornburg v. Gingles, 478 U.S. 30, 62 (1986).

    In the Texas case, while the Fifth Circuit found the Texas law had discriminatory impact, it nonetheless remanded to the lower court for a reevaluation of whether the law had discriminatory intent based on new criteria (the lower court had already found discriminatory intent after trial). Similarly, in Wisconsin, the district court initially held that the law violated both the Fourteenth Amendment and Section 2 of the VRA, but the Seventh Circuit reversed. Last week, on remand, the district court held that the state must allow voters who cannot obtain appropriate photo ID through reasonable efforts to cast a ballot with an affidavit. But in North Carolina, the Fourth Circuit however went much further, finding that the state legislature intended to discriminate against African American voters in violation of both the Fourteenth Amendment and Section 2 of the VRA.