“Plan B For Voting Rights”: It’s Time For Congress To Use It’s Authority Under The Election Clause
Voting-rights advocates generally don’t look to Justice Antonin Scalia for comfort. During oral arguments earlier this year in Shelby County v. Holder, the case in which the Supreme Court struck down a central part of the Voting Rights Act of 1965, Justice Scalia called the act a “perpetuation of racial entitlement.”
But a growing circle of legal scholars is focusing on a lower-profile ruling — issued one week before the Shelby County decision and written by Justice Scalia — that may point the way to a new approach to protecting voting rights.
The 7-to-2 decision, in Arizona v. Inter Tribal Council of Arizona, struck down an Arizona law requiring anyone who wanted to vote to provide proof of citizenship. It said the state could not impose a rule that was more restrictive than the federal “motor voter” law, which requires only a sworn statement of citizenship by the voter.
Congress passed the motor-voter law under its power to set the “times, places and manner” of federal elections as authorized by Article I, Section 4 of the Constitution, known as the elections clause. The clause is much less well known than, say, the equal protection clause of the 14th Amendment, and yet Congress’s power under it, Justice Scalia wrote, “is paramount, and may be exercised at any time, and to any extent which [Congress] deems expedient.”
“That sort of woke everybody up again,” said Samuel Issacharoff, a professor at New York University School of Law who has studied the elections clause’s possibilities.
The problem, Mr. Issacharoff said, is that voting laws based on intentional racial discrimination, which the Voting Rights Act has been so successful at blocking, are both rarer and harder to identify today. “A lot of the contemporary problems are not well handled through the 50-year-old mechanism of the Voting Rights Act,” he said.
The elections clause, by contrast, does not speak to racial discrimination at all, but addresses the administration of voting rules. Still, in light of the Supreme Court’s ruling in Shelby County, it could have an important role to play. Strong federal laws enacted under the clause could help ensure voting fairness to all voters, especially when a state law appears neutral but has serious partisan or racially discriminatory effects. For instance, a state’s voter ID law might put up hurdles for poor or young voters, who may be disproportionately minority and Democratic, or for elderly voters, who lean Republican.
The elections clause allows Congress to set rules only for federal elections, but those laws almost always guide state election practices, too. For instance, Congressional legislation could pre-empt voter ID laws like Arizona’s or changes to early-voting laws like those attempted in Florida last year.
The bottom line, said Daniel Tokaji, an election law professor at the Moritz College of Law at Ohio State, is that Congress has much more power to legislate under the clause than it has exercised. It could, for example, liberalize voter registration nationwide, which has been shown to lead to higher turnout.
“I think Congress would be foolish not to look at the elections clause,” Mr. Tokaji said. “If they could do it over again, they might have paid more attention to it back in 2006,” when the Voting Rights Act was reauthorized using data that the Supreme Court in the Shelby County case found to be outdated. (Mr. Tokaji argued in an amicus brief that the justices should rely on the elections clause to uphold the Voting Rights Act, but the court did not address the issue in its ruling.)
Given the apparent direction of the court, even the remaining parts of the Voting Rights Act could be vulnerable to constitutional challenges. That makes it all the more timely for Congress to turn to its expansive authority under the elections clause to protect the right to vote.
By: Jesse Wegman, The New York Times, August 31, 2013
“A Little Help From Our Friends”: ALEC And Select Conservative Groups Responsible For Writing North Carolina’s Restrictive Laws
When North Carolina voters elected Pat McCrory as their governor in 2012, it was the first time in 28 years that North Carolinians had elected a Republican governor, and the first time in 100 years that Republicans controlled the governor’s office and the state legislature in the Tar Heel state. Since the gubernatorial election, the conservative North Carolina legislature has had the opportunity to propose and pass some extreme and restrictive pieces of legislation — and they did just that, with the help of certain special interest groups.
According to a report in The Charlotte Observer, The American Legislative Exchange Council (ALEC) has had just as much say in the state’s policies as any elected official.
ALEC is a self-described “nonpartisan membership association for conservative state lawmakers who shared a common belief in limited government, free markets, federalism, and individual liberty” that began as President Reagan took office in 1981. The Charlotte Observer reports that ALEC had proposed 466 bills modeled on the organization’s conservative vision for states throughout the country.
“Republican lawmakers passed 338 laws this year that will touch every North Carolinian’s pocketbook, every student’s classroom and every voter’s experience at the polls, writes The Observer. ”Their sweeping changes have drawn praise from conservatives, scorn from Democrats and punch lines on Comedy Central.”
“At one point, Raleigh’s News & Observer counted at least two dozen bills that matched ALEC priorities,” the article goes on to say. “They included voter ID, publicly financed vouchers for private schools, and prioritizing energy exploration.”
Two North Carolina lawmakers sit on ALEC’s board of directors: Former House Speaker Harold Brubaker (R), and current House Speaker Thom Tillis (R) (who is also squaring off against incumbent Senator Kay Hagan (D-NC) for her senate seat in 2014.) Tillis won ALEC’s “Legislator of the Year” award in 2011.
ALEC’s Commonsense Consumption Act, designed to combat New York City mayor Michael Bloomberg’s attempt to limit the size of soft drinks sold in the city, was approved by ALEC board members in 2004 and again on January 28, 2013. HB 683, which passed in the North Carolina legislature and was signed by Governor McCrory on July 18, 2013, included some of the exact language from the ALEC model.
ALEC also introduced the Freedom of Choice in Health Care Act, which they boasted was the model for North Carolina’s House Bill 2. As stated in an ALEC press release, “This legislation protects the rights of citizens to pay directly for medical care, and would prohibit the government from penalizing North Carolinians for failing to purchase health care.” The bill passed through North Carolina’s legislature, but was vetoed in 2011 by former Governor Beverly Perdue (D).
“ALEC is just one part of a larger picture of (lawmakers) writing legislation to benefit wealthy corporate contributors.” Justin Guillory, the research director for Progress N.C., told the Observer, “I don’t want to diminish ALEC’s impact, but they’re only one part of the puzzle.”
The Observer also cites two North Carolina-based groups for their hand in controlling legislation. The Civitas Institute and the John Locke Foundation, both funded by McCrory’s budget director Art Pope, have introduced multiple proposals that have been adopted into state legislation. A book of ideas published by the John Locke Foundation was taken into consideration by Republican legislators and many proposals pertaining to the economy, taxes, and Medicaid were implemented. John Hood, president of the Locke Foundation, said, “Virtually everything we proposed in the book in 2012 was enacted in 2013.”
Grassroots North Carolina serves as another example. The pro-gun-rights group advocated for legislation that allows people to carry weapons on school campuses, bars, and restaurants with a concealed-carry permit.
Despite the best efforts of the conservative groups, however, North Carolina’s hard right turn may ultimately prove be shortlived; according to a recent PPP Poll, the North Carolina general assembly holds a bleak approval rating of only 24 percent.
By: Allison Brito, The National Memo, August 26, 2013
“It’s Not Good For Republicans”: This Is How Not To Defend Voter Suppression In North Carolina
Two weeks after North Carolina Gov. Pat McCrory (R) approved the most sweeping voter-suppression law seen in the United States in a generation, the political world is taking note of the disaster in growing numbers. Last week, former Secretary of State Colin Powell condemned the state’s new voting restrictions, and yesterday, pundit Cokie Roberts said, “[W]hat’s going on about voting rights is downright evil.”
But don’t worry, the Eagle Forum’s Phyllis Schlafly, a prominent leader of the religious right movement for decades, has a new defense. In a WorldNetDaily column, the right-wing activist offered an unexpected explanation of why some of North Carolina’s new restrictions are worthwhile.
The reduction in the number of days allowed for early voting is particularly important because early voting plays a major role in Obama’s ground game. The Democrats carried most states that allow many days of early voting, and Obama’s national field director admitted, shortly before last year’s election, that “early voting is giving us a solid lead in the battleground states that will decide this election.”
The Obama technocrats have developed an efficient system of identifying prospective Obama voters and then nagging them (some might say harassing them) until they actually vote. It may take several days to accomplish this, so early voting is an essential component of the Democrats’ get-out-the-vote campaign.
Have you ever heard a political figure accidentally read stage direction, unaware that it’s not supposed to be repeated out loud? This is what Schlafly’s published column reminds me of.
For North Carolina Republicans, the state’s new voter-suppression measures are ostensibly legitimate — GOP officials are simply worried about non-existent fraud. The response from Democrats and voting-rights advocates is multi-faceted, but emphasizes that some of these measures, including restrictions on early voting, have nothing whatsoever to do with fraud prevention and everything to do with a partisan agenda.
And then there’s Phyllis Schlafly, writing a piece for publication effectively saying Democrats are entirely right — North Carolina had to dramatically cut early voting because it’s not good for Republicans.
Remember, Schlafly’s piece wasn’t intended as criticism; this is her defense of voter suppression in North Carolina. Proponents of voting rights are arguing, “This is a blatantly partisan scheme intended to rig elections,” to which Schlafly is effectively responding, “I know, isn’t it great?”
By: Steve Benen, The Maddow Blog, August 26, 2013
“Not In This Lifetime”: Republican Jim Sensenbrenner Asks Attorney General Holder To Back Off In Texas
As we discussed yesterday, Attorney General Eric Holder is challenging new voting restrictions imposed by Texas Republicans, hoping to use the remaining provisions of the Voting Rights Act to protect Texans’ access to the ballot box. GOP officials, not surprisingly, weren’t pleased with the move, but there was one reaction in particular that I found interesting.
But Mr. Holder’s moves this week could endanger that effort, said Rep. F. James Sensenbrenner Jr., Wisconsin Republican, who led the latest reauthorization of the Voting Rights Act in 2006.
“The lawsuit would make it much more difficult to pass a bipartisan fix to restore the heart of the VRA that the Supreme Court struck down earlier this year,” Mr. Sensenbrenner said.
He said he had spoken with Mr. Holder and asked him to withdraw the lawsuit.
It’s worth noting for context that Sensenbrenner may be a conservative Republican, but he’s also earned a reputation as a long-time supporter of the Voting Rights Act. Indeed, among GOP lawmakers, it’s probably fair to say the Wisconsin Republican is the VRA’s most reliable ally. When Sensenbrenner says he’s working on a legislative fix in the wake of the Supreme Court’s ruling, I’m inclined to believe him.
That said, for Holder to back off now would be crazy.
Look, I don’t blame Sensenbrenner for this, but literally every indication suggests congressional Republicans intend to block efforts to pass a new-and-improved Voting Rights Act. The Attorney General has a simple calculation to make: protect Americans against discriminatory voter-suppression tactics or wait for the House GOP to work in a bipartisan fashion on voting rights.
Can anyone seriously blame Holder for preferring the former to the latter? It seems far more realistic for the A.G. to turn Sensenbrenner’s request around and say, “When Congress passes the Voting Rights Act, I’ll stop filing these lawsuits, not the other way around.”
Remember this story from July?
If House Republicans are interested in patching the Voting Rights Act, they aren’t showing it.
“Historically I fully understand why they addressed the situations they did,” Republican Rep. Trent Franks of Arizona, who chairs the House judiciary subcommittee that would handle new voting rights legislation, said to reporters after the hearing. “I am just of the opinion today that we should do as the court said and that is to not focus on punishing the past but on building a better future.”
As we talked about at the time, most of the Republican members of the panel apparently didn’t think the hearing was especially important — which is to say, they didn’t show up — and the witnesses GOP lawmakers called reinforced fears that the party simply isn’t interested in a constructive debate.
The Heritage Foundation’s Hans von Spakovsky, for example, was called by Republicans to offer his “expert” testimony on voting rights, despite the fact that von Spakovsky is best known for the loathsome voter-suppression tactics he championed during his tenure in the Bush/Cheney Justice Department. If this is the guy GOP lawmakers are turning to for guidance, the future of the Voting Rights Act is bleak.
Indeed, von Spakovsky assured the Judiciary Committee panel that the “the systematic, widespread discrimination against blacks has long since disappeared” — a claim we know to be ridiculously untrue.
Sensenbrenner’s worthwhile efforts notwithstanding, those waiting for House Republicans to do the right thing on voting rights are going to be waiting a very, very long time.
By: Steve Benen, The Maddow Blog, August 23, 2013
“Motivated By Discriminatory Intent”: Justice Department Tells Texas It’s Voter Suppression Will Not Stand
In one week last August, federal courts found that Texas’ voter ID law and redistricting maps were discriminatory and violated the Voting Rights Act. The Supreme Court’s recent decision invalidating Section 4 of the VRA, which previously covered Texas, tragically wiped away those rulings. Now the Department of Justice is once again stepping in to fight for voting rights in the Lone Star State.
The DOJ announced today that it is objecting to Texas’ voter ID law under Section 2 of the VRA and will also seek to join a similar lawsuit against the state’s redistricting maps. Last month, DOJ asked a court in Texas to force the state to approve its voting changes with the federal government for a period of time under another provision of the VRA, Section 3, based on a finding of intentional discrimination in the restricting case. The federal courts found last year that Texas’ new maps for Congress and the state house were “enacted with discriminatory purpose.”
A federal court blocked Texas’ voter ID law last year for very good reason. As I wrote last August, here are the facts of the case:
The state admitted that between 603,892 to 795,955 registered in voters in Texas lacked government-issued photo ID, with Hispanic voters between 46.5 percent to 120 percent more likely than whites to not have the new voter ID; to obtain one of the five government-issued IDs now needed to vote, voters must first pay for underlying documents to confirm their identity, the cheapest option being a birth certificate for $22 (otherwise known as a “poll tax”); Texas has DMV offices in only eighty-one of 254 counties in the state, with some voters needing to travel up to 250 miles to obtain a new voter ID. Counties with a significant Hispanic population are less likely to have a DMV office, while Hispanic residents in such counties are twice as likely as whites to not have the new voter ID (Hispanics in Texas are also twice as likely as whites to not have a car).
The court objected to the law specifically because “(1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty.” Along with North Carolina, Texas has the harshest and most absurd voter ID law in the nation. Case in point: you can use a gun permit to vote but not a student ID. The state is also doing nothing to encourage people to get the supposedly “free” ID; a month after the Supreme Court’s ruling, only six people in Texas had obtained one, even though 600,000 to 800,000 registered voters lack the government-issued ID.
In its new court filing, DOJ contends that the voter ID law “will disproportionately impact Hispanic and African-American voters in the State of Texas, resulting in their being disenfranchised at a greater rate than Anglo voters.” The department says the law, known as SB 14, was “motivated by discriminatory intent” and “will have a discriminatory result.”
From the brief:
While the stated purpose of SB 14 was to ensure the integrity of elections, voter ID proponents cited virtually no evidence during or after enactment of SB 14 that in-person voter impersonation—the only form of election fraud addressed by the identification requirements of SB 14—was a serious problem or that the State’s then-existing identification procedures had failed to prevent in-person voter impersonation.
The State knew or should have known that Hispanic and African-American Texans disproportionately lack the forms of photo ID required by SB 14, as compared to their Anglo counterparts.
Nevertheless, supporters of voter ID in the Texas legislature made little to no effort to analyze the potential effect of photo ID requirements on minority voters and rejected amendments requiring investigation of the effect of SB 14.
The long history of voting discrimination in Texas makes the new law all-the-more worrisome. DOJ writes: “The State of Texas’s history of official racial discrimination against its African-American and Hispanic citizens is longstanding and well-documented. Federal intervention has been necessary to eliminate numerous devices intentionally used to restrict minority voting in Texas.” Texas has lost more Section 5 enforcement suits than any other state.
It will be much harder for the Department of Justice to block Texas’ voting changes under Section 2 of the VRA than it would have been under Section 5, but they’re smart to try. (See my piece on why Section 2 is no replacement for Section 5.) “We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights,” Attorney General Eric Holder said today. “This represents the Department’s latest action to protect voting rights, but it will not be our last.”
Since the Court’s decision, seven Southern states have rushed to pass or implement onerous new voting restrictions. North Carolina recently adopted the country’s worst voter suppression law (which voting rights groups are also challenging under Section 2), with local election boards escalating attacks on student voting hours after its passage by shutting down polling places at college campuses and preventing students from running for office. Since Holder has vowed more action to protect voting rights, there’s a very good chance that the Tarheel State will be next on his list.
By: Ari Berman, The Nation, August 22, 2013
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