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. 

  • August 6, 2015
    Guest Post

    by Mimi Marziani. Ms. Marziani is the Legal Director of Battleground Texas and teaches “Election Law and Policy” at University of Texas School of Law. All views are her own.

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

    You may be tempted not to think too deeply about the Fifth Circuit’s decision yesterday, affirming that Texas’s photo ID law disparately burdens Black and Latino voters and thus violates Section 2 of the Voting Rights Act. Perhaps you just want to celebrate the result: that ‒ unless appellate review dictates otherwise ‒ Texas’s discriminatory law will be reformed. Or, maybe you are tired of hearing about Texas this week. On Monday, our attorney general, Ken Paxton, was indicated for securities fraud (oops) and on Tuesday, former governor Rick Perry failed to make the cut for the first GOP debate (famously, oops).

    But the Fifth Circuit’s opinion underscores truths about voting in Texas that, like the Lone Star State itself, cast an oversized shadow on election law and policy nationwide.

    To start: As the court recognizes, numerous empirical studies confirm that increasing the cost of voting decreases turnout. This is particularly true for low-income citizens who are, in the Fifth Circuit’s words, the “most cost sensitive.” The Texas photo ID law operates to impose severe burdens upon the poor, who are wildly less likely to have one of a few types of IDs that satisfy Texas’s law such as a driver’s license or passport, and cannot afford the necessary underlying documentation. As one voter put it during trial, before paying $42 for a birth certificate so she could get an ID, she had to weigh the significant costs to her family, explaining that “we couldn’t eat the birth certificate, and we couldn’t pay rent with the birth certificate.” Understandably, most people in that situation will not vote. The rent is too damn high.

    Moreover, as the Fifth Circuit detailed, due to historical discrimination, Black and Latino Texans are, on average, less likely to graduate from high school, more likely to be unemployed, and more likely to be in poor health. These factors lead to wide income gaps — 29 percent of Blacks and 33 percent of Latinos live below the poverty line, compared to just 12 percent of Anglos. This means that the ID law’s burdens on poor voters are disparately felt by communities of color.

  • August 5, 2015
    Guest Post

    by William R. Yeomans, Fellow in Law and Government at American University Washington College of Law and a former acting Assistant Attorney General for Civil Rights

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

    Access to the ballot should not be a partisan issue. Republicans, however, have teed up ballot access as a defining partisan issue. Just as this emphasis placed renewed pressure on our laws against racial discrimination, five justices fulfilled a longstanding conservative goal by disabling the requirement that states and localities with extensive histories of racial discrimination seek approval of voting changes from the federal government. Shelby County v. Holder lifted the preclearance requirement, unleashing jurisdictions to adopt photo ID laws, restrictive registration measures, shortened voting periods, and other measures that disproportionately restrict the opportunities for minority voters to cast ballots. Jurisdictions have concocted thoroughly debunked allegations of in-person voter fraud and unconvincing administrative cost justifications in support of these restrictions. As a last defense, they have sometimes conceded the partial truth – that these restrictions are designed to discourage Democrats from voting, as if that partisan purpose excuses their racial impact.

    How did we reach this point where electoral partisanship is so closely entangled with race? After all, the history of our nation is one of struggle to expand the franchise to incorporate once excluded segments of the electorate. We gradually and often painfully shed voting restrictions on non-property owners, the illiterate, women, and 18-to-20-year-olds. Twice we sought to guarantee the right to vote without regard to race – first through the Fifteenth Amendment and nearly a century later through the Voting Rights Act. The undeniable message of this progression is that the country gradually embraced the notion that every citizen of sufficient age, sound mind and (in too many states) non-felonious criminal record should be permitted to vote.

    Yet, partisan consequences already burdened the mind of President Lyndon Johnson when he signed the Voting Rights Act in 1965, noting that he feared his signature would hand over the South to the Republican Party. Indeed, as Democrats nationally became the party of civil rights, the once Democratic leaders of segregated southern states turned to the Republican Party, whose presidential nominee in 1964, Barry Goldwater, had opposed the 1964 Civil Rights Act. The Republican Party, led by Richard Nixon in 1968, saw political advantage in catering through its southern strategy to the backlash against the civil rights movement, Brown v. Bd. of Education and its progeny, and the civil rights laws of the 1960s.

  • August 5, 2015
    Guest Post

    by Gene Nichol, Boyd Tinsley Distinguished Professor, University of North Carolina School of Law

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

    In gutting what, for so many, had been the central enforcement mechanism of the iconic Voting Rights Act, Chief Justice Roberts wrote, famously, in the Shelby case, “Things have changed in the South . . . dramatically.” The “[n]ation has made great strides.” The Congress, in his view, had “failed to speak to current conditions.” Near unanimous votes in the House and Senate, reauthorizing the Act, had failed to perceive our present exalted attainment. Roberts and his four always-perceptive colleagues knew better. Black voting rights are secure here in Dixie. Bless his heart.

    Within hours of the announcement, Sen. Tom Apodaca, Republican Chairman of the Rules Committee in North Carolina, announced, correctly, that the floodgate had been opened. The already-ambitious voter suppression effort the General Assembly had been considering could, as a result, shoot for the stars. “Now we can go with the full bill,” he enthused. The “headache” of the Voting Rights Act was dispatched. The bill grew from 14 pages to 57. It added 48 new sections, running the gamut of innovative electoral constraint. The Brennan Center called it the “most restrictive since the Jim Crow era.” What Roberts said no longer occurs in the southland happened immediately, here and, of course, elsewhere. Perhaps the Chief Justice was surprised. I doubt it. Certainly no one in North Carolina was.

    North Carolina is 22 percent African American. Both houses of our General Assembly have massive, veto-proof Republican majorities. When they retreat to their respective caucuses to discuss and, effectively, to enact the laws that govern us, no black member is present. There aren’t any. So, in the last four years, as the legislature has racially gerrymandered our electoral districts, repealed a crucial Racial Justice Act, ushered in harsh voter ID requirements, kicked 500,000 people off Medicaid, passed the largest cut to a state unemployment compensation program in American history, and abolished the state’s earned income tax credit, no black voice, yea or nay, was offered. A white governor and an all white cabinet round out the picture. North Carolina is run by a white government. It is 2015.

  • July 16, 2015
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School

    *This post originally appeared on The Huffington Post.

    When most people propose changes in our electoral system, they generally do so in order to achieve a political end, not because the change conforms to a platonic ideal of what elections should be like. So it is with the plaintiffs in Evenwel v. Abbott, No. 14-940, which the Supreme Court will hear this fall. Their claim is that, when states draw their legislative districts, the Equal Protection Clause requires that they use the numbers of voters, instead of the number of people, as the basis for allocating seats within the states.

    The Supreme Court has ended the most blatant forms of gerrymandering and required legislative districts at both the state and federal level to be equal in composition within each state. The Court's rulings have been labeled "one person, one-vote," and the general assumption has been that, in dividing up each house by districts, the denominator has been the total population of the state.

    Evenwel challenges that assumption and argues that, because the goal of one person, one vote is to have each person's vote count the same as every other person's, the denominator should be total voters and not total population. If this were the law, the main groups that would no longer be counted are children, illegal immigrants, those not registered to vote, and felons who are precluded from voting. Until the actual lines are drawn for all the districts in a state, the results are not certain. But we do know that the backer of this lawsuit (Edward Blum) also supports Fisher v. University of Texas, which seeks the elimination of affirmative action in university admission. Therefore, it is reasonable to assume that he believes that the change would have an adverse impact on minorities and their Democratic supporters, or at least it has that potential in some states, including Texas where the case was brought.