Tag Election

Why We Still Need the Voting Rights Act

by Caitlin Naidoff

I spent Election Day 2012 in Pennsylvania, which was aptly described by media coverage as “ground zero for problems.” Reports recently submitted to the Senate Judiciary Committee accurately reflect what I observed in my own experience: signs and individuals falsely indicating that photo identification would be required, phone messages from unidentified callers directing voters to the incorrect polling locations, and the inexplicable absence of long-time voters from the rolls at polling sites where they had voted for the past 20 years. I also received reports that voters who had registered to vote through their welfare office were never added to the rolls.

It was clear that one major source of confusion was the state’s contested Voter ID law, which had been passed by the state legislature over the summer but was pre-empted by a preliminary injunction just weeks before the election. Judge Robert Simpson of the Commonwealth Court of Pennsylvania found that there was not enough time remaining to close the “gap between the photo IDs issued and the estimated need” and postponed further consideration or enforcement of the law until after the election. However, the court’s decision still allowed poll workers to ask for identification. As a result, I received calls from confused voters who, under the impression that they would not be allowed to vote, turned around and went home.

What impressed me most about my experience was the anger and shame expressed by rightful voters who were impeded by these practices. One of the plaintiffs in a class action suit challenging the Pennsylvania Voter ID law, Gloria Cuttino, explained “I’ve campaigned…I volunteer to do whatever I can to help because I think it’s important…I would really like to cast my opinion to make a difference, you know?…Why can’t I vote anymore? Why now?” Her comments illustrate the way in which identification requirements that effectively deny the right to vote are not just logistically problematic, but fundamentally offensive to dignity.

Proponents of identification requirements contend that the ease of obtaining identification should mitigate any concerns. This argument underestimates the diversity inherent in the American experience. Several of the plaintiffs in the Pennsylvania suit, for example, were delivered by midwives rather than in hospitals and were never able to obtain state identification because they did not have birth certificates. Additionally, for people who live in rural areas or have demanding work schedules, obtaining a so-called free identification card could be prohibitively costly.

A federal court highlighted these concerns when it struck down a similar law in Texas last summer, finding that the law would discriminate against minority voters, particularly those who are poor. The court heard the case as part of a preclearance procedure required by §5 of the Voting Rights Act, which requires jurisdictions with a history of discrimination to get approval from the federal government before amending their election procedures. Currently, nine states as a whole are subject to these restrictions, as are select counties and townships in seven other states.[1] The panel reviewing the Texas voter ID law denied preclearance because it found that “racial minorities in Texas are disproportionally likely to live in poverty” and the proposed law would “weigh more heavily on the poor.” The resulting retrogressive effect on minority voting, the court held, would impermissibly contravene the purposes of the Voting Rights Act.  If Texas were not required, by § 5, to go through this preclearance procedure, then it would have been able to enact this law without federal approval.

This February, the Supreme Court will reexamine the constitutionality of §5 of the Voting Rights Act. The plaintiff in the case, Shelby County, Alabama, argues that Congress exceeded its enforcement authority under the 14th and 15th Amendments when it reauthorized the Act in 2006. Primarily at-issue is the imposition of preclearance requirements on areas where fewer than 50 percent of minorities were registered to vote in 1972. It is important to note, however, that a jurisdiction subject to preclearance procedures under §5 is permitted to “bail out” of its requirements if it is able to demonstrate in front of a three-judge panel in the District Court for the District of Columbia that “for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations.”[2]  Additionally, the jurisdiction must show that it has engaged in efforts to eliminate intimidation of voters and present evidence of minority electoral participation.

Shelby County contends that its minority registration rates are currently above this threshold, and that the law is unconstitutionally arbitrary due to its reliance on outdated information. The District Court for Washington D.C. rejected the suggestion that Congress lacked sufficient evidence when it reauthorized the Act. In fact, the House Judiciary Committee developed “one of the most extensive legislative records” in its history, including 12,000 pages of testimony, documentary evidence, and statistical analyses. The court concluded that Congress responded to what it reasonably perceived to be a continuing history and pattern of unconstitutional conduct by covered jurisdictions, and that the reauthorization conformed to constitutional standards.

Still, the Supreme Court has indicated it may be sympathetic to Shelby County’s argument. In 2009, the Court heard a similar case and, while it declined to decide the merits of the constitutional issue, stated: “the evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by § 5 than it is nationwide.” Paradoxically, the effectiveness of the Voting Rights Act is being used to advocate for its demise.

The Court’s decision could have grave implications for the future of Voter ID laws in states, like Texas, that have been unable to demonstrate during preclearance procedures that identification requirements would not have a retrogressive effect on the “blight of racial discrimination in voting.”  In contrast, the Court’s decision would not directly impact the viability of voter ID laws in states like Pennsylvania, which is not a jurisdiction covered by the special provisions of the Voting Rights Act.

Based on my experience in Pennsylvania on Election Day, I would agree with Shelby County that that the legislature might benefit from ongoing data collection and analysis regarding current efforts to disenfranchise minority voters.  However, unlike Shelby County, I believe that a comprehensive analysis would suggest states should be subject to more rather than less restrictive oversight.  I do not mean to suggest that areas with longstanding history of racism should not be viewed with particularly close skepticism, or that current statistics should be prioritized over anecdotal evidence or documentation of historical trends. But the problems that I witnessed made clear to me that discriminatory voting practices take many forms and are not limited to the American south. Voter identification requirements are no less degrading to Gloria Cuttino simply because she sits in Pennsylvania.

The Supreme Court should uphold the protections offered by the Voting Rights Act, and leave to Congress the policy questions raised by new methods of disenfranchisement and discrimination.

Caitlin is a 2L at NYU, where she is a Staff Editor for the Review of Law and Social Change.

[1] Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia are covered in theirentirety. Select townships and counties are covered in California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.  See http://www.justice.gov/crt/about/vot/sec_5/covered.php.

Marriage Equality at the Ballot Box

by Geoffrey Wertime

On May 6, 2009, I excitedly called my aunts in Maine to tell them that their state was finally going to recognize their longstanding relationship, which Massachusetts had first recognized several years earlier. Shortly thereafter, I had to call again to inform them that Question 1’s presence on the ballot had put the new law on hold.[1] That November, by a vote of 53 to 47 percent, the citizens of Maine rejected the marriage law, telling the state’s same-sex couples that their relationships didn’t count.

Question 1 was an unhappy loss for same-sex marriage advocates, but it was hardly a surprise. At that point, LGBT rights had only survived one single statewide referendum. Arizona’s Proposition 107 asked voters to amend the Arizona State Constitution to limit the state’s definition of marriage to opposite-sex couples and to prevent the state from recognizing unmarried couples in any official way. That proposition lost in 2006, but just two years later, Arizona voters passed a very similar measure. Proposition 102 changed Arizona’s constitution so that the state may only recognize monogamous, opposite-sex marriage.

Going into the elections this year, LGBT rights advocates had reason to be more hopeful about the questions on state ballots: it seemed the tide might finally be turning in favor of civil rights. The Second Circuit Court of Appeals had just recently become the second of the circuit courts to find the “Defense” of Marriage Act (“DOMA”) unconstitutional, in Windsor v. United States.[2] The Supreme Court was set to consider whether to take up any or all of several cases from lower courts that had ruled in favor of same-sex marriage. (The Court has yet to decide whether to hear any of three challenges to DOMA or Perry v. Schwarzenneger, a Ninth Circuit case which struck down California’s Proposition 8.)[3]

Yet given the movement’s troubled history with referenda, there was still reason to be concerned. Maggie Gallagher, former president and chairperson of the anti-LGBT “National Organization for Marriage,” has regularly touted her side’s previously perfect record on voter initiatives. Indeed, their latest victory was May 8, 2012, when voters in North Carolina enacted a same-sex marriage ban in  the state constitution by an overwhelming margin of 61 to 39 percent.

The elections this November represented a sea change in the politics of same-sex marriage, and possibly LGBT rights more broadly. Not only did voters approve (or refuse to deny) statewide LGBT rights for the first time in our nation’s history, but they did so in four referenda: MaineMaryland and Washington all voted to legalize same-sex marriage, while Minnesota voters rejected an anti-marriage amendment proposed for their state’s constitution. In Iowa, State Supreme Court Justice David Wiggins retained his seat despite a campaign targeting him after he voted with a majority in 2009 to recognize the right to same-sex marriage in the Iowa constitution.[4] At the same time, Wisconsin voters elected the nation’s first openly LGBT senator, current House Democrat Tammy Baldwin, and we have finally elected a president who openly supports marriage equality.[5]

It bears noting that these are only partial victories because the protection of civil rights should never be left to a popular vote. Had that been the case during the Civil Rights Movement of the 1960s, we might never have achieved even the formal, albeit practically limited, level of racial equality we have today. The key of this year’s election is that the primary strategy right-wing groups have used to attack same-sex families is no longer a reliable win for them, but we are far from establishing full equality for LGBT people.

Loving v. Virginia, the case that struck down the last of the old anti-miscegenation laws, came after all but 16 states began to allow interracial marriage.[6] With 31 anti-same-sex marriage amendments still in place, it is still unclear whether the Supreme Court will author another groundbreaking opinion like Loving, or whether it will falter as it did in Pace v. Alabama, an 1883 case upholding the state’s anti-miscegenation statute.[7] Until the Court gets it right, LGBT rights advocates will continue  fighting one state at a time. In the meantime, same-sex couples will continue to have their rights shift as they travel between states with varying levels of respect for their relationships.[8]

Still, these state referenda are great victories for LGBT rights. When the Court takes marriage equality cases, it will be in a vastly different landscape. With these latest additions, nine states and the District of Columbia recognize (or soon will) same-sex marriage. That stands in stark contrast to the cultural landscape the last time the Supreme Court took up LGBT rights; no state had yet successfully legalized same-sex marriage by the time the court issued its Lawrence v. Texas opinion in 2003.[9] Now, along with our legislative victories, queer characters are more common than ever on television; gay, lesbian and bisexual people may now serve openly in the military; and same-sex couples now have the right to visit their loved ones in hospitals receiving federal funding.[10]  Those advancements, and others like them, mean that the next Supreme Court case will come at a time when political and social acceptance of LGBT people is at its highest point ever, and history will clearly be on the side of equality. Whether the Court chooses to acknowledge those advancements remains to be seen.

Geoffrey is currently a 2L at NYU School of Law.  He is a Staff Editor on the Review of Law & Social Change and Co-Chair of OUTLaw.

[1] Ironically, the amendment was listed on the ballot as “An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom” (emphasis added).

[2] Windsor v. United States, 12-2335-CV L, 2012 WL 4937310 (2d Cir. Oct. 18, 2012).

[3] Perry v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012), was the focus of the N.Y.U. Review of Law & Social Change’s symposium in October.

[4] Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

[5] During his 1996 Illinois State Senate campaign, President Barack Obama wrote on a questionnaire that he supported legalizing same-sex marriage. However, he changed his stance to supporting only civil unions when he ran for the U.S. Senate in 2004. He again reversed course and openly supported legalizing gay and lesbian unions, albeit on a state-by-state basis, in May 2012. See, e.g., President Barack Obama’s Shifting Stance on Gay Marriage, PolitiFact, http://www.politifact.com/truth-o-meter/statements/2012/may/11/barack-obama/president-barack-obamas-shift-gay-marriage/ (last visited Nov. 8, 2012).

[6] Loving v. Virginia, 388 U.S. 1, 6 (1967).

[7] Pace v. Alabama, 106 U.S. 583, 585 (1883).

[8] Imagine a gay coupled married in New York who is taking a trip to Pennsylvania. They will be treated as married in New York, civil union partners in New Jersey, and strangers in Pennsylvania. Compare them with a lesbian couple who has a civil union in New Jersey. They will be treated as strangers in both states that don’t recognize same-sex unions, such as Pennsylvania, and in states that only recognize same-sex marriages, since a civil union is not a marriage. See Defense of Marriage Act, Pub.L. 104-199, 110 Stat. 2419 (1996).

[9]  Lawrence v. Texas,539 U.S. 558 (2003).

[10] Presidential Memorandum – Hospital Visitation, 75 Fed. Reg. 20,511 (April 15, 2010).


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