NAACP v. Husted

Despite what the picture on his website might have you believe, Ohio Secretary of State Jon Husted REEEEAAALLLLY doesn't want more people voting. Like really, really. You may remember some of his greatest hits like getting sued by OFA and getting hauled in front of a judge for deliberately disobeying the court's order to restore early voting. The ACLU brief sums it up nicely.

"In Ohio, targeting early voting has become a pattern. In 2011, the Ohio General Assembly passed a law eliminating both Golden Week and the last three days of early voting before Election Day. Voters responded by organizing a ballot referendum to strike down the law, prompting legislators to repeal it on their own.

In 2012, Husted continued the pattern by issuing a directive that cut the same three days of early voting for all non-military voters. The Obama campaign responded with a federal lawsuit and the court forced Husted to restore the early voting days, allowing an additional 67,000 voters to cast an in-person ballot before the election."

May of this year rolled around and Husted and his bros in the legislature were like, "You know what we should do? Cut early voting. That's gone awesomely and been totally legal before." Enter NAACP v. Husted.

"The lawsuit names Husted and Ohio Attorney General Mike DeWine as defendants. It seeks to strike down Ohio Senate Bill 238, a 2014 law that eliminated the first week of early voting in Ohio. This period, often referred to as "Golden Week," enables voters to register and cast a ballot on the same day. The suit is also challenging a 2014 Husted directive that further slashed the early voting period by eliminating all Sundays, the Monday before Election Day and all evening voting hours."

Thankfully, and unsurprisingly, a Federal court granted injunctive relief this morning ruling that the law violates Section 2 of the Voting Rights Act(the part prohibiting laws that have a racially discriminatory effect) which means Golden Week (weird name) will be restored for the midterms. Can Ohio please stop now?

Update: Voting Rights Amendment Act of 2014

When I wrote about the Supreme Court's decision to strip Section 5 of the Voting Rights Act Shelby County v. Holder last year, I noted that preclearance could return if Congress could approve a more updated formula that reflected modern mechanisms and history of voter suppression. As you may remember, Section 5 required that certain jurisdictions have any changes in voting laws "precleared" by the Department of Justice or a three-judge panel in DC. Section 4 outlined the criteria under which states and municipalities were subject to Section 5. Shelby v. Holder struck down Section 5 under the assertion that the formula in Section 4 was outdated and unfairly treated some states differently than others. Preclearance was one of the most important facets of the Voting Rights Act because it shifted the burden of proof from disenfranchised citizens on to the states and jurisdictions that disenfranchise them.

A year after the landmark (and deeply upsetting) decision, voting rights advocates led by Democrat (and Batman enthusiast) Senator Patrick Leahy are working to revise the formula in order to restore the teeth to the VRA. S.1945 or the Voting Rights Amendment Act of 2014 amends the criteria for which states and jurisdictions that would be covered under Section 5. You can read the details here, but the gist is that the formula would include states and municipalities with a substantial history of voting rights violations over the course of the previous 15 years.

Unsurprisingly, like almost everything else good that could possibly happen in Congress, the bill is stalled in the house.

For more Section 5 on CampaignSick click here and here.

Ask Nancy: What Happened With the Supreme Court and Voting Rights?

Many people are confused by the recent disappointing ruling in Shelby County v. Holder, a case I wrote about earlier this year.You can read the entire opinion here. I answer some common questions about the ruling, and its potential implications, below.

Did the Supreme Court strike down the Voting Rights Act?
No, but they did strike down the coverage formula delineated in Section 4 which was one of its most important mechanisms of enforcement.

I thought you said this case was about Section 5.
It was. Section 5 required that jurisdictions covered under Section 4 have any changes in voting laws "precleared" by the Department of Justice or a three-judge panel in DC. Hence without Section 4, no Section 5.

What was the coverage formula based on?
When the Voting Rights Act was enacted in 1965 any jurisdiction that maintained a "test or device" as a barrier to enfranchisement, for example a literary test, as of November 1, 1964 was included. It also included states where less than half of the voting-age population was registered to vote as of November 1, 1964 or where less than half of the voting-age population had voted in the previous Presidential election. In 1970, Congress renewed the act and added that any jurisdictions that fit the aforementioned criteria as of 1968 would be also be included. In 1975, when Congress renewed the act again they expanded the formula to include jurisdictions that fit the criteria as of 1972, they also expanded the definition of "test or device" to include a failure to provide election materials in a second language in areas where linguistic minorities were concentrated.

So once you were covered you were covered forever? What if you violated voting rights after 1972?
Jurisdictions that felt they no longer fit the critera could seek a declaratory judgement to "bail-out" and no longer be covered under Section 4. Any jurisdiction that violated any other part of the Voting Rights Act could be "bailed-in."

Why did the Supreme Court rule Section 4 unconstitutional?
It comes down to everyone's favorite loophole for discrimination: state's rights. The constitution gives all powers not specifically assigned to the Federal Government to the states, including the administration and regulation of elections. In addition, we operate under a principle of "equal sovereignty among the states." In the majority opinion, Chief Justice Roberts ruled that Section 4 violated these principles by treating some states differently than others.

But wasn't that true in 1965 when the Voting Rights Act was enacted?
Yes. However, in a 1966 case challenging this portion of the act the Court ruled that the “uncommon exercise of
congressional power” was justified by the “exceptional conditions” of widespread discrimination, voter suppression and intimidation. The Court argued that conditions have changed dramatically since 1965 while the VRA has not.

Is the court claiming that voter suppression and discrimination no longer exists?
No. It is claiming that discrimination has declined dramatically and that it looks very different than in did in 1965. The Court pointed out that when the VRA was enacted the formula was partially based on Jim Crow era measures like poll taxes and literary tests, while the most recent electoral schemes dismissed under Section 5 involve things like redistricting and voter ID.

Isn't it possible that discrimination has declined in covered areas because of Section 5?
Possible, nay probable. Quoth my personal hero, Justice Ginsburg in the dissent, "[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." This is evidenced by the fact that since the ruling previously covered jurisdictions have been running to implement redistricting schemes and voter id laws that they know to be discriminatory. Texas Governor and famous big jerk Rick Perry just approved the new Texas electoral maps that had been ruled discriminatory by a three-judge panel.

Surely some areas had evolved and no longer needed to be covered under Section 5.
Of course. That's what the bail-out mechanism was for. However, it was the districts trying to implement discriminatory measures that objected to Section 5. As famous civil rights attorney, Fred Gray pointed out if these jurisdictions had "developed to the point where they [were] interested in protecting the individual rights of minorities and the proposals [were] indeed not discriminatory, they would have nothing to worry about when submitting an issue for preclearance."

Without Sections 4 and 5, how are voters protected from discriminatory changes to election law?
The Court went out of its way to emphasize that Section 2, "which bans any'standard, practice, or procedure' that 'results in a denial or abridgment of the right of any citizen . . . to vote on account of race or color,' applies nationwide, is permanent, and is not at issue in this case." Voting rights advocates are already gearing up to sue discriminatory jurisdictions under Section 2.

Section 2 seems like it's got us covered. What's the problem?
What Section 5 did was shift the burden of proof from the oppressed to the oppressor. Section 2 requires that oppressed groups be aware of changes to election law and have the organization and resources to fight them. Don't forget, Section 4 covered municipalities too. Sure it might make it on the news if there were a new statewide law, but what about a local change in early voting hours? By the time a suit is brought and decided against a discriminatory change it may have already had a deleterious effect. It's a lot easier to stop a law from being implemented than fight it once it's already in place.

So, is preclearance gone forever?
Not necessarily. The Court's main objection to Section 4 is that the formula is based on the discriminatory practices of yesteryear and that only combatting these practices justified what would normally be considered Congressional overreach. The Court deliberately left it open for Congress to come up with a new way to use preclearance to fight modern day discrimination. "To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions." Unsurprisingly, some Democrats have already begun formulating a plan to do just that and Republicans are formulating a plan to stop them.

Today in Voter Suppression: Shelby County v. Holder

Hey Guys,
I've been wanting to talk to you about Section 5 for a while. Below is an OpEd I wrote about a very important case coming up before the Supreme Court (so apologies for the strange tone). This is potentially a huge deal for minority voting rights. Enjoy!
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Later this month the Supreme Court will hear arguments in the case of Shelby County v. Holder, which calls into question the constitutionality of Section 5 of the Voting Rights Act. Simply put, Section 5 requires states or localities with a history of racial discrimination to clear any changes in election procedures and districting with the Department of Justice or a three judge panel in Washington DC, before those changes may be enacted. It is among the federal government’s most important tools in combatting voter suppression. The Supreme Court must uphold Section 5 and identify this challenge for what it is: the latest in a long line of Republican attempts to rewrite the rules of a game they are losing.

During the 2012 election cycle, voting rights were thrust into the spotlight thanks to partisan attempts to restrict access to the polls for youth and minority voters. Although laws requiring voter ID or limiting early voting were introduced under the pretense of preventing voter fraud and relieving burdens on local election boards, their true motivation was clear-- disenfranchising Democratic voters. Perhaps the most flagrant example is the case of the Pennsylvania House Majority Leader Mike Turzai who boasted that, “voter ID…is gonna allow Governor Romney to win the state of Pennsylvania.” Following President Obama’s successful reelection, it may seem as if these concerns have passed by the wayside. However, for those of us who work in electoral politics the fight is far from over. If the Supreme Court does not uphold Section 5, millions of voters will effectively lose their political voice.

Opponents of Section 5 claim that the law is outdated because it was enacted to combat Jim Crow era literacy tests and that such discrimination no longer exists. However, one need only look to the recent election cycle to realize that racially motivated voter suppression is alive and well. Having run Election Day operations for a Texas Congressional campaign I can tell you anecdotally that local officials in one county opened polling locations in African American neighborhoods –and only those neighborhoods-- two hours late. Unsurprisingly, the commissioner in charge of elections in that county is an outspoken opponent of Section 5. Minority heavy polling places in an adjacent county in which the Department of Justice chose to have a preemptive presence (under a provision separate from section 5) did not experience such delays. In a Texas redistricting case, a three judge court slammed legislators for attempting to “remove the economic guts” from African American Congressional districts. Both the redistricting scheme and a discriminatory voter ID law would have been enacted in 2012 had Texas not been covered under Section 5. South Carolina voters would have been subject to a similar voter ID law and minority communities in Florida would have seen reduced hours at their polling places. The list goes on. Voter ID laws alone would have barred access to the polls for between 700, 000 and 1 million minority voters nationwide.

True, effected voters could have challenged the laws subsequent to their passing, but those legal battles would have been long and expensive and resolved only after the damage had been done. Before Section 5 this was common practice. Discriminatory legislation would be struck down after an election, a jurisdiction would find some other means of discrimination and the process would repeat itself. Section 5 shifts the burden of proof from the oppressed to the oppressor.

The prosecution will argue that Section 5 is unconstitutional because it treats some states and districts differently than others. However the choice of covered districts is not arbitrary, but rather based on a formula that identifies areas with a history of racially motivated vote suppression. Districts covered by Section 5 have in effect made their own bed. To the extent that the formula may be under-inclusive, this is an argument to expand Section 5, not eliminate it. Where federal intervention is truly no longer necessary districts can file for a “bail out,” which will exempt them from preclearance. Dozens of towns and counties have taken advantage of this mechanism.

The fact that states like Texas would so obviously not qualify for bailouts only speaks to Section 5’s necessity—as does Shelby County’s persistence in seeking ways to avoid complying with anti-discriminatory measures. As a voting rights advocate, it is my sincerest hope that these districts will one day meet the standards of equality to truly render Section 5 obsolete. Until that time, me thinks the Republican legislatures do protest too much.

Voter Suppression Round Up

So much is going on in the Republican War On Voting, that even I am starting to lose track. I thought it might be helpful to put down on internet paper some of the cases I've mentioned on the blog and where they stand right now.


Texas
A federal court rejected Texas' voter ID law, which means it will (likely) not be in effect for the November election. However, Texas Attorney General, Greg Abbott has pledged to appeal the ruling. If the Supreme Court agrees with him, the law could be in effect in future elections. In addition, part of the lawsuit that Abbott filed challenges the validity of Section 5 of the Voting Rights Act, which states that jurisdictions with a history of racial prejudice (including Texas) need to get changes in local voting law approved by a federal court before they can be enacted. This may wind up leading to landmark case.

South Carolina
Federal court closing arguments on South Carolina's voter ID law ended today, so we will have to wait and watch.

Pennsylvania
The State Supreme Court returned the Voter ID Case to lower court vacating a prior ruling that would have upheld the controversial law. The Supreme Court is asking the lower court to review whether it is really practical for voters to get the necessary ID to comply with the law and vote before election day.

Florida
Voting Rights advocates have successfully overturned a law that heavily restricts community based voter registration drives. Florida has also stopped its purge of voter rolls upon the revelation that the government was using outdated lists. However, the Justice Department has sustained Florida's decision to eliminate early voting on the Sunday before election day, when black churches traditionally run their "Souls to the Polls" programs.

Ohio
The Obama campaign and other plaintiffs successfully fought Secretary of State John Husted over a diminished early voting period by arguing that under the Equal Protection Clause Ohio had to offer the same early voting hours to civilians as were offered to military personnel. Then bizarely Husted issued a directive prohibiting counties from following the ruling and U.S. District Judge Peter Economus hauled Husted into court personally. Economus has rejected a request to delay enforcement of the law. The case is currently being appealed.


As you can see, many of these cases are still unsettled, so please feel free to shoot me a note correcting me with more updated information.

Keep fighting the good fight,
Nancy

Today In Voter Suppression: Jokes

From the website:

1) These are not bipartisan efforts. They are initiated by Republicans, passed by Republicans, and signed into law by Republicans. The State House Majority Leader in PA asserted that these voter restrictions would allow Mitt Romney to win the state.

2) The voters most likely to be burdened by these new voting restrictions are Democrats. Consider which voters don't have ID. Among seniors and young voters, 18% don't have valid ID. Among African Americans, 25% don't have valid ID.

3) Restrictions on voting, like poll taxes and "literacy" tests, have a long history. They are used by one party to prevent supporters of another party from voting.

4)If someone were trying to steal an election, in person voter fraud, where a voter pretends to be someone they are not at the polls, is the last method anyone would chose. Absentee ballot stuffing is much easier. But more Republicans vote by absentee ballot. So no new restrictions on absentee voting.

5) The Brennan Center has estimated that as many as 3.2 million citizens could find it harder to vote because of new voter ID laws.

Couldn't have said it better myself! Hooray for Sarah Silverman! She uses her comedy career to get people to vote, I use my get people vote career to make people laugh! Jews!

Today In Voter Suppression (and Gerrymandering and Racism)

Benjamin Jealous speaking at SIPA

I am going to quote heavily from this Salon.com article, in part because it is thorough and well written but moreover because I am so angry after reading it that I am having trouble forming coherent sentences. The deliberate and systematic racial discrimination described in the article is exactly what NAACP President, Benjamin Jealous, was talking about when I heard him speak about voting rights and discrimination last spring. This is from his speech:

“Historically, efforts at voter suppression have always been about suppressing issues of equality and social justice...Protecting the vote and ending racial profiling are actually the same thing. The disproportionate incarceration of the black community and voter suppression are exactly the same thing.”

I've already posted a little about his speech (which moved me to tears, not an easy feat), but just now found the video, which should be required watching for anyone interested in voting rights. Jealous mostly focuses on incarceration as it pertains to voting rights, but the points he makes about the link between racism and voter suppression are extremely relevant to the Salon article, which chronicles five ways that the Texas Legislature is targeting Latino and African American voters. Excerpts from the article:

1. Lawmakers drew some districts that looked like Latino majority districts on paper — but removed Latinos who voted regularly and replaced them with Latinos who were unlikely to vote.

In the redistricting case, a panel of three federal judges found that Texas lawmakers had intentionally created districts that would weaken the influence of Latino voters, while appearing to satisfy the requirements of the Voting Rights Act. [Nancy note: Consider the level of cunning that had to be involved here. It actually offends my sensibilities.]

2. Lawmakers widened the gap between the proportion of the population that is Latino and African-Americans and the proportion of districts that are minority-controlled.

In the years leading up to the 2010 census, Texas’ population increased by 4.3 million people, 65 percent of them Latino. As a result, Texas gained four seats in Congress.

In their decision, the federal judges in the redistricting case noted that minority voters have no constitutional right to proportional representation. But the Voting Rights Act says states can’t weaken the electoral power of minorities. So, the judges reasoned, if there is already a gap between the minority population of a state and its political representation, states can’t let that gap grow wider.

3. Texas removed economic centers and district offices from African-American and Latino districts, while giving white Republicans perks.

In defending its new maps, Texas argued that the districts had been shaped to help Republicans and hurt Democrats — a perfectly legal tactic — and that race had been irrelevant to its choices. [Nancy note: WHAT? As if that's fine but keep going]

[Three protesting members of Congress] and African-American Rep. Sheila Jackson Lee, all Democrats, also testified that their district offices were drawn out of their districts — a detriment because constituents want easily accessible district offices.

“No such surgery was performed on the districts of Anglo incumbents,” the judges found. “In fact, every Anglo member of Congress retained his or her district office.”

4. Divide and conquer: Texas “cracked” minority voters out of one district into three.

Lawmakers reshaped the district in a way that “cracked the politically cohesive and geographically concentrated Latino and African American communities,” and placed those voters “in districts in which they have no opportunity to elect their candidates of choice.”

5. Texas passed a voter-ID law with requirements that would make it disproportionately difficult for African-Americans and Latinos to vote.

It's important to note that the Texas voter ID law will not be in effect for the November election.

I know about and understand greed and the desire to keep your party in power. I'm not saying that's good, but it is what it is. This seems to be to surpass partisan politics and fall into the categories of racist and unAmerican.

I don't like to use the word "evil" when it comes to political issues. It implies a link between government and religion that I am not quite comfortable with. Besides, I want to believe that our leaders are motivated by good intentions no matter how misguided their choices are. But, it's really hard for me to come up with another word that fits this situation.

Of course I knew about all these phenomenon. I'd just never looked at them collectively while listening to Benjamin Jealous speak.

Reeling from this,

-Nancy

Ohio will upgrade voting sites to assist voters with disabilities

I love to see examples of when HAVA (Help America Vote Act) does its job! I feel like I've spent a lot of time writing about taking away voting accessibility lately. It's uplifting to do the opposite. ADA accessibility is actually a pretty big deal. It's one of the reasons I hate caucuses (because you have to physically BE there, regardless of how hard getting there is).

A very short article,but an important one.

Today in Voter Suppression (attempts)

The federal Voting Rights Act remains intact, after D.C. federal judge John Bates dismissed a challenge to the law from Shelby County, Alabama.

Really, Republicans? Really?