Tag Voting Rights

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.

The History of Voter Suppression and VRA’s Section 5 Today

by Sean McMahon

The 2012 election cycle was rife with a new crop of voter suppression measures, designed to reduce the access of minorities, the poor, and limited-English speaking citizens to the polls. Despite these well-documented abuses of the electoral process, advocates have emerged arguing that disenfranchisement of minorities is no longer a major concern and that Section 5 of the Voting Rights Act – the federal government’s bulwark against disenfranchisement – is unconstitutional.

The Supreme Court will decide the fate of Section 5 in Shelby County v. Holder, a case brought by a district in Alabama asserting that Section 5’s requirements violate federalism and equal protection. Section 5 requires jurisdictions with a history of racial discrimination to obtain federal preclearance before changing any voting procedure or regulation. This places the burden on state and local governments that fall under the coverage of Section 5 to justify their new electoral procedures as nondiscriminatory.

In considering whether Section 5 is still necessary today, it is worth reflecting on why such a far-reaching measure was adopted originally. Civil rights leaders understood that limiting access to the polls – even with facially neutral laws – could have a grossly disproportionate impact on minority voters and effectively prevented their participation in the political process. Section 5 is designed to prevent such laws from going into effect and is a major reason the Voting Rights Act has been called “the most effective civil rights law ever enacted.”

Disenfranchisement from the Civil War to the Civil Rights Movement

Following the passage of the Fifteenth Amendment in 1870, all men “regardless of of race, color, or previous condition of servitude” were formally ensured the right to vote. Yet for nearly a century, people of color were disenfranchised via literacy tests, poll taxes, and grandfather clauses. Since generations of slavery and racial inequality rendered people of color far less wealthy and educated than whites, these facially neutral laws effectively disenfranchised many African Americans.

After the formation of the NAACP in 1909, African American leaders pursued a strategy to challenge restrictive voting laws. Despite notable victories in cases such as Guinn v. United States, 238 U.S. 347 (1915) (striking down a grandfather clause in Oklahoma and Maryland) and Smith v. Allwright, 321 U.S. 649 (1944) (striking down whites-only Democratic primaries), racist voter suppression was too pervasive to be defeated by individual lawsuits. Furthermore, it was sometimes difficult to prove the government enacted these laws with discriminatory intent, which was necessary to establish an equal protection violation. Compounding the NAACP’s struggle was the fact that a single case could take years to win.

As the Civil Rights Movement gained ground throughout the 1950s and early 1960s, white supremacist tactics evolved and became subtler. Some jurisdictions implemented new facially neutral voting tests purporting to measure understanding of the issues and the character of the voters. Due to longstanding systemic inequality in education and subjective evaluation of good character, these tests effectively barred African Americans from the polls. Incumbent white politicians further disempowered African American voters by gerrymandering voting districts to weaken the black vote and prevent the formation of majority-black districts. In order to halt this deliberate avoidance of the requirements of the Fifteenth Amendment, Congress enacted Section 5 of the Voting Rights Act to force state and local governments across the South to justify any new electoral rules and procedures.

Photograph of President Lyndon Johnson Signs t...

President Lyndon Johnson signs the Voting Rights Act as Martin Luther King, Jr. and other civil rights leaders look on. (Photo credit: The U.S. National Archives)

The Voting Rights Act to Today: Why Section 5 Is Still Needed to Protect Access to the Political Process

Congress renewed the Voting Rights Act in 1982 and again in 2006; both times, it noted the continued importance of Section 5 despite advancements in racial justice. Jurisdictions under Section 5 persist in proposing regulations that restrict minorities’ access to the polls. The number of Section 5 objections (regulations flagged by the Department of Justice as discriminatory) has declined since the 1960s, but the provision has not fallen into disuse. The Lawyers’ Committee’s National Commission on the Voting Rights Act found that between 1965 and 2004, over half of all objections were made after 1982. Surveying data from 1982 to 2004, the Commission found that out of 800 DOJ requests for more information from state and local governments regarding new rule proposals, 205 rule proposals were withdrawn. Columbia law professor Nathaniel Persily notes that this “gives a sense of how many dogs did not bark as a result of the threat of denial of preclearance.”

In this past election cycle, conservative politicians sought new voting rules in order to reduce Democratic voter turnout. Section 5 has been the strongest defense against voter suppression tactics. In the past year, Section 5 prevented the reduction of early-voting hours in some districts in Florida and blocked a voter ID law in Texas. The court that struck down the Texas ID law noted that the required documentation would be enormously burdensome to obtain, and would disproportionately affect minorities and the poor. Recently, federal judges used Section 5 to block a Texas redistricting plan that would have divided a population of African American and Latino voters into new, white-majority districts. Judge Thomas B. Griffith described it as a “deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.”

Jurisdictions under Section 5’s review have complained that it is burdensome and unfair since other jurisdictions do not need to submit to preclearance. However, it is possible to be released from Section 5 preclearance – a jurisdiction simply needs to refrain from proposing a discriminatory electoral law for ten years. Over seventy jurisdictions have successfully done so,and ten jurisdictions in the state of New Hampshire are currently in the process of being released from Section 5 review, which would make it the first entire state to leave Section 5 coverage – though a conservative advocacy group is attempting to block the release as part of a broader strategy to strike down Section 5 as unconstitutional.

Society has changed for the better in the past half-century, and the turnout of minority voters is on the rise. But the amelioration of a problem is not its eradication. Until full and equal participation for people of color in the political process can truly be guaranteed, Section 5 is necessary to enforce their political and civil rights.

Sean is a 2L at NYU and a Staff Editor on the Review of Law & Social Change.

Money and Rights

Deborah Hellman

20 Dollars art3

20 Dollars art3 (Photo credit: Wikipedia)

Money is necessary to exercise some constitutional rights; for example, getting an abortion requires cash.  In this article,

Deborah Hellman asks: when do constitutionally protected rights include an accompanying right to spend or give money?

Based on a thorough analysis of Supreme Court cases, Hellman offers an underlying principle that explains when a constitutional right includes a concomitant right to give or spend money.  Constitutional rights are divided into two types: those that have a concomitant right to give or spend of money, and those that do not have such a concomitant right.  Hellman describes the former category as an “integral” approach and the latter as a “blocked” approach.

In Hellman’s view, the Supreme Court has established an integral approach when no adequate alternative means exists to exercise that right.  In contrast, most of those Supreme Court cases that have established a blocked approach have done so because there is an adequate alternative mechanism to exercise the right.

In this article, Hellman calls upon us to challenge our understanding of the relationship between money and constitutional rights.  In doing so, she determines that Citizens United may have been wrongly decided because the public campaign finance system provides an adequate alternative mechanism to private political contribution.

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Citizens United and Equality Forgotten

Mark C. Alexander


In this article, Alexander examines the Supreme Court’s decision in Citizens United, which treats campaign spending by corporations as political speech deserving of strong protection under the First Amendment. Alexander argues that this approach creates a form of vote dilution wherein wealthy individuals and powerful corporations exert a disproportionate amount of control over politics, implicating constitutional concerns under the Guarantee Clause. Furthermore, candidates and elected officials spend an increasing amount of time and energy on campaign fundraising, detracting from their responsibilities as representatives of the people. Alexander argues that freeing up the time of elected officials should be considered a compelling interest and therefore be given weight in the constitutional calculus.

This article explores the reasoning in the Citizens United decision and the history of campaign finance jurisprudence and argues that the Court can remain faithful to the First Amendment without overlooking the danger of debate distortion and vote dilution.

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