Voting Rights

  • October 8, 2015
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    The state of Alabama has once again relegated some of its citizens to second-class status.  The confluence of driver’s license office closures and a much maligned voter identification law fosters the dishonoring of Alabama’s black and impoverished citizens in a perpetual cycle of deprivation and struggle.

    The genesis of the recent strife begins with Alabama’s enactment of a voter ID law in 2011, requiring citizens to present a valid, government-issued ID to vote at polls beginning in 2014. One of the most common forms of ID satisfying the state law are driver’s licenses. Pursuant to the state’s own study conducted in 2014, 10 percent of registered voters – 250,000 citizens – lack any form of the required photo ID, and 20 percent of registered voters – 500,000 citizens – lack a valid Alabama driver’s license or non-driver photo ID.

    Ostensibly due to spending reductions in Alabama’s fiscal year 2016 budget, the Alabama Law Enforcement Agency (“ALEA”), of which the Driver License Division is a part, closed 31 part-time, satellite driver’s license offices. As a result of these closures, 28 of Alabama’s 67 counties will not have facilities to issue licenses to first-time driver’s license examinees or out-of-state transplants seeking an Alabama license. Those seeking license renewals may do so at county probate offices or online (yet those options present their own problems).

    Citizens and civil rights defenders decry the closures due to the disproportionate burden massed upon black citizens and the impoverished in the largely rural counties. The closures eradicate eight of the ten counties in Alabama with the highest percentages of non-white, registered voters. Indeed, those eight counties comprise the only counties where more than 75% of the registered voters are black citizens. A refined analysis portrays a more troublesome picture. While 80 percent of the counties with non-white voting majorities suffer the closures, only 35 percent of the counties with white voting majorities bear any consequences (20 of the 57 remaining counties in Alabama), thus leaving 65 percent of the counties with majority-white voters largely unaffected. This disparity in the closures’ impact starkly portrays the inequity in ALEA’s budget cutting.

  • September 15, 2015
    Guest Post

    by Victorien Wu, Fried Frank Fellow, NAACP Legal Defense and Educational Fund, Inc.

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    The Fourteenth and Fifteenth Amendments to the U.S. Constitution hold the promise of equal political citizenship for Black voters. Yet, this commitment remains unfulfilled in Terrebonne Parish, Louisiana, where, in 2008, a white sitting judge of the parish court, Judge Timothy Ellender of the 32nd Judicial District Court (“32nd JDC”), was reelected to a six-year term without having to face opposition, even after he was suspended by the Louisiana Supreme Court in 2004 for attending a Halloween party wearing blackface, an orange prison jumpsuit, handcuffs, and an afro wig in an apparent parody of Black criminal defendants who appeared before him.

    The reelection of Judge Ellender to his seat in 2008 was made possible by the discriminatory method of election that the state of Louisiana uses for the 32nd JDC. Each of the five judges of that court is elected at-large from the parish, meaning that all voters in the parish can cast a ballot in electing each of the five judges. However, Black voters constitute a minority of the electorate (at 20 percent), and voting in Terrebonne is deeply polarized along racial lines. In seven elections that were conducted at large in Terrebonne between 1993 and 2014 and that featured at least one Black candidate and at least one white candidate, Black candidates preferred by the Black community received an average of 87 percent of Black voter support, but an average of only 8 percent of white voter support.

    As a consequence, under at-large voting in Terrebonne, the preferred candidates of Black voters have been consistently defeated, regardless of whether the candidate has run as a Democrat, as a Republican or otherwise. For example, in the 1994 election for the 32nd JDC, Anthony Lewis, a Democrat and the only Black candidate, received about 73 percent of Black voter support, but only 1 percent of white voter support, thus losing the election. Reflecting the same dynamic 20 years later, in the 2014 election for the Houma City Court, another court in the parish, Cheryl Carter, a Republican and the only Black candidate, received about 85 percent of Black voter support, but only 8 percent of white voter support. As a result, she too lost the election.

  • September 4, 2015

    by Nanya Springer

    On The Huffington Post BlogJudith E. Schaeffer of the Constitutional Accountability Center weighs in on the controversy in Rowan County, Kentucky, arguing that obtaining a marriage license should be hassle-free for everyone.

    In a press release, Demos announced that the U.S. Court of Appeals for the Ninth Circuit on Thursday reinstated a case challenging Nevada’s failure to provide voter registration services to its low-income citizens. The decision comes after the case was thrown out by the U.S. District Court for the District of Nevada.

    Sam Ross-Brown and Amanda Teuscher report in The American Prospect that the Department of Labor’s new rules allowing workers at higher income levels to qualify for overtime pay will not only result in an effective raise for millions of people, but will also give workers more control over their work hours and personal lives.

    The Center for Reproductive Rights announced in a press release yesterday that it has petitioned the U.S. Supreme Court for review of a decision by the U.S. Court of Appeals for the Fifth Circuit. In June, the Fifth Circuit upheld onerous restrictions on abortion clinic access in Texas which, if allowed to stand, would close more than 75 percent of clinics in the state.

  • August 14, 2015
    Guest Post

    by Franita Tolson, the Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law.

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    The fiftieth anniversary of the Voting Rights Act of 1965 provides an opportunity to reflect, not only on its marveled history, but also on the next frontier of voting rights litigation and policy. The Act has faced unprecedented challenges in recent years, culminating in the 2013 U.S. Supreme Court decision of Shelby County v. Holder. In Shelby County, the Court invalidated the coverage formula of section 4(b) of the Voting Rights Act.  The coverage formula required certain jurisdictions, mostly in the south, to preclear all changes to their electoral laws with the federal government under section 5 of the Act.  The Court found that the formula unduly infringed on the states’ sovereign authority over elections because Congress had not updated the formula in over forty years, and racial discrimination in voting had substantially decreased over this time period. 

    Contrary to the Court’s assertions of post-racialism, the years since Shelby County have welcomed a considerable increase in the number of restrictions designed to undermine the right to vote. According to the Brennan Center, states have introduced 113 bills this year alone that limit access to registration and voting. There also has been litigation challenging voting restrictions in North Carolina and Texas, which enacted very restrictive voting laws immediately following the Shelby County decision.  Unsurprisingly, both the U.S. Department of Justice and private litigants have turned to section 2 of the Voting Rights Act to challenge these provisions after the Supreme Court crippled the preclearance regime of sections 4(b) and 5. Section 2 of the Act forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”  Unlike the preclearance regime, section 2 applies nationwide and allows plaintiffs to challenge a law after it goes into effect.

    The strategic decision by the Justice Department and private litigants to use section 2 to fill the gap left in the Voting Rights Act post-Shelby County has brought renewed attention to section 2’s constitutionality.  The Supreme Court has never directly addressed this issue, and critics argue that section 2 raises many of the same federalism concerns as the recently invalidated coverage formula.  Texas, in the current litigation over its voter identification law, explicitly argued that it is unconstitutional to apply section 2 to address the racially discriminatory effects of its voter identification law absent a showing that the law is intentionally discriminatory. So far, courts have been unresponsive to this type of argument, but very few courts have confronted the issue in the post-Shelby County world. 

  • August 11, 2015
    Guest Post

    by Julie Ebenstein, Staff Attorney, Voting Rights Project, American Civil Liberties Union

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    Just days before the 50th anniversary of the Voting Rights Act, we completed a three-week trial challenging North Carolina’s sweeping anti-voter law. 

    In 2013, soon after the U.S. Supreme Court struck down Section 4 of the Voting Rights Act - and with it, the preclearance protections of Section 5 - North Carolina passed an election law shocking in its lack of a valid purpose and its extensive abridgement of citizens’ right to vote.  The challenged provisions of the law reduced the number of days for early voting, eliminated same-day-registration, and prohibited out-of-precinct Election Day voting.  Cumulatively, the law is one of the most repressive elections bills seen in decades. The law exemplifies a “second generation” barrier to voting.  It created broad, structural impediments to electoral participation, in part on the basis of race, and will likely impact hundreds of thousands of voters in the upcoming presidential election.

    In the pre-2013 world, the law would not likely have survived Section 5 preclearance, and thus, would never have been implemented.  But the absence of Section 5’s protection has created a severe disadvantage for voters challenging state’s vote denial measures. Our lawsuit, filed the day the law was implemented, illustrates some of the obstacles to protecting voting rights in the post-Shelby era.

    Section 2’s prohibition on racial discrimination is one of the remaining tools to protect the franchise, but it requires that litigation take place after a law has already gone into effect. As such, the advantages of time and inertia have shifted back to the perpetrators of voter suppression and away from its victims.  Section 2 cases are fact intensive, time-consuming and resource-intensive undertakings.  With constant election cycles, there is no guarantee that the legality of state election laws will be determined before voters are irreversibly disenfranchised.

    The 2014 federal election provides numerous examples. In late 2014, we saw rapid-fire orders by the U.S. Supreme Court, instructing the Sixth, Fourth, Seventh and Fifth Circuits to put election-related decisions on hold until after the election.  Over the course of three weeks, the U.S. Supreme Court made four determinations that affected voting rights in key federal elections.  On September 29, 2014, the Court stayed an Ohio district court decision, upheld by a Sixth Circuit appeals panel, enjoining the state’s cuts to early voting.  The following week, on October 8, the Court stayed the Fourth Circuit mandate to reinstate same-day registration and out-of-precinct voting, after the district court declined to enjoin the practices.  The next day, the Court vacated the Seventh Circuit’s stay of a Wisconsin district court’s permanent injunction of the state’s strict voter ID law.  On October 18, the Court denied applications to vacate the Fifth Circuit’s stay of a decision enjoining Texas’s voter ID law.