Voting Rights

  • August 7, 2015
    Guest Post

    by Atiba R. Ellis, Professor of Law, West Virginia University College of Law. Twitter: @atibaellis

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

    The cornerstone of our democratic republic is the right to vote. The vote allows “We the People” ultimate say over government. The vote allows “We the People” to reject big-money-funded misinformation, the erosion of fundamental rights, and the degradation of public policy. As the Supreme Court has said for over a century, the right to vote is the most fundamental political right because it is “preservative of all other rights.” 

    To be effective at these (admittedly lofty) goals, we also have to recognize that the diversity of our electorate matters. For government to be legitimate, all citizens should be able to participate. Arbitrary bars to political participation raise questions of the validity of representative bodies. History has shown that in the absence of broad enfranchisement, government only acts for the unrepresentative majority. That majority can (and does) marginalize the minority when it comes to the minority’s status as equal citizens. This describes the majoritarian racial domination that defined the Jim Crow era of the nineteenth and twentieth centuries. The Voting Rights Act of 1965 (the “VRA”), which we celebrate in this symposium, is the Constitution’s weapon against this racial domination.

    This state of racial domination had its roots in Reconstruction. The Reconstruction-era Congress, as I note here, sought specifically to protect the vote of freed slaves. The Republican majority in Congress of the late 1860s feared that terrorist tactics and legalized mischief would dissuade African Americans (an important Republican voting bloc) from the franchise. This Congress passed, and the states ratified, the Fifteenth Amendment that constitutionalized the idea of a right to vote free of racial discrimination.

    But the Reconstruction Congress’s fears came true in the century that followed. Even with the Fifteenth Amendment, our constitutional structure nonetheless relies heavily on states to define and administer the qualifications for voting. The Jim Crow period was created by a the southern states betraying the Fifteenth Amendment through race-neutral yet nonetheless disempowering tactics like poll taxes and literacy tests that crushed black political power.

    Thus, by the time the VRA was passed in 1965 to address these concerns, the democratic legitimacy of the United States was openly questioned. Two Americas existed—a white male America with full civil and political power and a black America where two-thirds of African Americans had been discouraged, dissuaded, and terrorized out of the vote.

  • August 7, 2015
    Guest Post

    by J. Gerald Hebert and Nate Blevins. Mr. Hebert is the Executive Director and Director of Litigation at The Campaign Legal Center. Mr. Blevins is a Fellow at the Campaign Legal Center. The Campaign Legal Center partners with ACS for the Voting Rights Institute.

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

    Barely a page into his majority opinion in Shelby County v. Holder, Chief Justice John Roberts makes a claim that in any other context would seem unremarkable, even obvious: "Voting discrimination still exists; no one doubts that."

    The Chief Justice was at least half right: The overwhelming evidence indicating that "voting discrimination still exists" is beyond debate. What's unclear, however, is whether "no one doubts" such discrimination still exists. In fact, the Chief himself seems to doubt it quite a bit.

    In Shelby, the Court's task should have been straightforward. In the past, the Justices had held consistently that "Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." As a result, all the Court needed to decide was whether the Voting Rights Act’s Section 4 preclearance formula (as applied through Section 5) was a "rational means" of enforcing the guarantees of the Fifteenth Amendment. Indeed, the Court had little difficulty making that determination prior to Shelby County: It upheld the Voting Rights Act's preclearance regime first in South Carolina v. Katzenbach in 1966 and affirmed it again 14 years later in City of Rome v. U.S. Both times, it rejected claims that the VRA exceeded Congress's power to enforce voting rights, going so far as to call the choice to extend the VRA "unassailable" and "plainly a constitutional method of enforcing the Fifteenth Amendment."

    So, what changed? How did the Court go from treating the VRA's constitutionality as "plain" and "unassailable" to having, as the majority put it in Shelby, "no choice but to declare [the preclearance provisions] unconstitutional"?

  • August 6, 2015
    Guest Post

    by Katherine Culliton-González, Senior Attorney & Director of Voter Protection, Advancement Project

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

    Fifty years ago today, the Voting Rights Act of 1965 (“VRA”) was signed into law. Fifty years ago, across the South brave men, women and children stood up for the fundamental right to vote and put their lives on the line. Some were injured, some lost their lives, and they never stopped marching. They sang “ain’t nobody going to turn me around,” and they meant it. Thanks to their bravery and belief in democracy, we now celebrate the 50th anniversary of the most effective piece of civil rights legislation.

    The 1965 VRA immediately reversed the inability of African Americans to register and vote in the South and put a stop to the English-only literacy tests faced by the Puerto Rican community in the North. Since then, numerous forms of racial discrimination in voting have been stopped by the provisions of the 1965 VRA, and our nation has seen dramatic change in the ability of people of color to participate in our democracy. Yet in the past few years, we are retrogressing.

    In 2015, many African American men, women and children have been beaten and murdered by police, and this June in Charleston, South Carolina, nine were fatally shot by an armed civilian in a church that was a refuge during antebellum times and during the civil rights movement. Although people of color represent the emerging demographic majority with concurrent potential political power, there is a backlash against immigrants, the majority of whom are Latino. Mothers and their children fleeing violence in Central America have been illegally held in detention centers, and Congress still refuses to even hold a vote on immigration reform. The confederate flag is coming down, but the fight to restore equality is by no means over. Perhaps not coincidentally, when it comes to voting rights and the ability to elect candidates who truly represent the interests of communities of color, we are also retrogressing.

  • August 6, 2015
    Guest Post

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

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

    Fifty years later, and we are still trying to figure out the puzzle. Today – the 50th anniversary of the Voting Rights Act – represents both a milestone and an opportunity. It is a milestone that allows us to reflect on how far we have come in protecting the right to vote. It is an opportunity to discern how best to protect the right to vote during the next fifty years, and beyond, particularly in light of the U.S. Supreme Court’s recent decisions curtailing that hallowed law. 

    In a new Issue Brief, which stems from two recent scholarly articles on the subject, I argue that, particularly given recent Supreme Court rulings and the now-reduced force of the Voting Rights Act, the answer of how best to protect the right to vote lies with state constitutions and state courts. 

    Unlike the U.S. Constitution, which merely implies the right to vote, virtually all state constitutions explicitly enumerate this right. We simply need state judges who are willing to construe broadly and independently these state constitutional grants of the right to vote.

    Part of the difficulty in finding a solution to our voting rights conundrum is that the U.S. Constitution does not provide an explicit individual right to vote. This might seem surprising given that voting is one of our most cherished rights. But the U.S. Constitution confers only “negative” rights, or prohibitions on governmental action. As a result, federal jurisprudence on the constitutional right to vote has been narrow, pigeon-holed under the Equal Protection Clause of the Fourteenth Amendment.  The Supreme Court’s test for the right to vote allows states to impose burdens so long as they are not “severe,” and it fails to require states to justify their electoral laws with any specificity. This gives room to partisan legislatures to enact election rules that curtail voting opportunities.

    State constitutions, however, explicitly grant the right to vote, saying that citizens “shall be entitled to vote” or are “qualified electors.” These provisions go substantively further than the U.S. Constitution because they specifically confer voting rights.

  • August 6, 2015
    Guest Post

    by Ana Choi, executive online editor, Harvard Law and Policy Review

    *This post originally appeared on the blog of the American Constitution Society’s official journal, the Harvard Law and Policy Review (HLPR).

    In commemoration of the 50th anniversary of the Voting Rights Act, HLPR has published a new article in which Ryan P. Haygood exposes the damage caused by Shelby County in the past two years.

    Fifty years ago today, the landmark Voting Rights Act of 1965 (“VRA”) was signed into law. The VRA was one of the crowning achievements of the civil rights movement, and for the next several decades, it played a crucial role in the fight against discrimination and the advancement of voting rights for minorities. Yet, in the 2013 case Shelby County, Alabama v. Holder, the Supreme Court halted and reversed the march of progress by striking down Section 4(b) of the VRA as unconstitutional. In doing so, the Supreme Court acted not only against its own precedent but also against the judgment of Congress—based on a vast and overwhelming amount of evidence—that the protection of the VRA was still needed. As can be seen in the 2014 HLPR articles by James Blacksher & Lani Guinier and Daniel P. Tokaji, academics and practitioners decried the Supreme Court’s decision and warned of the consequences that would follow. Sure enough, Shelby County gave free rein to states that had previously been restrained by the VRA, and many wasted no time in enacting discriminatory voting laws.