Voting Rights Advocates Rack Up More Wins

Earlier this month, PFAW reported on what has gone right for voting rights at the state level in 2014. While there is much more work to be done to enact needed reforms and to step up and counter threats when the right to vote is under attack, states like Florida, Georgia, and North Carolina have shown that we can win.

Now we've uncovered even more evidence of why we can and should keep fighting the challenges that lay before us.

Voters themselves will get to decide what voter empowerment means in Illinois. House Speaker Michael Madigan's constitutional amendment providing "that no person shall be denied the right to register to vote or to cast a ballot in an election based on race, color, ethnicity, status as a member of a language minority, sex, sexual orientation, or income" passed both chambers and will be on the November ballot. A similar effort is afoot in Ohio.

Native American voters in Montana have seen two encouraging developments. In Jackson v. Wolf Point School District, an agreement was reached that will provide for five-single member school board districts in addition to one at-large representative, as opposed to the existing multimember districts that heavily favored the area's white population. Wandering Medicine v. McCullough, which challenges the availability of late registration and early voting for residents of the Crow, North Cheyenne, and Fort Belknap Reservations, will proceed following a failed motion to dismiss the case.

In Washoe County, Nevada, home to Reno and the state's second most populated county, voters have come to expect 14 consecutive early voting days. This year, though, county commissioners planned to eliminate the two optional Sundays that fall within that period. The American Civil Liberties Union and other allies organized quickly, sending a letter to Chairman David Humke and providing testimony at a commission meeting. Thankfully at that same meeting Chairman Humke announced that Sunday early voting was back on and warrants further study.

Tod Story, ACLU of Nevada Executive Director, said:

Early voting allows more people to participate in our democracy, and weekend voting is necessary for many hardworking Nevadans. Weekends are especially important days for voting drives, including for communities of faith

US District Judge Nelva Ramos told Texas legislators, much like US Magistrate Judge Joi Elizabeth Peake did in North Carolina, that their emails must be disclosed – albeit confidentially – in the ongoing Voting Rights Act challenge to the 2011 Texas voter ID law.

Huffington Post:

The United States argued that the emails could be the only existing candid evidence about the purpose of the legislation because Texas Republicans coordinated their talking points on the bill and refused to publicly engage with the concerns of minority legislators. If any of the emails reveal discriminatory intent, the U.S. will still have to argue to get them admitted as evidence during the trial phase of the lawsuit.

Finally, Utah is taking Election Day Registration for a test drive. Governor Gary Herbert has signed HB 156, which sets up an opt-in pilot program for counties and municipalities. The state will keep an eye on how they do and report back to the legislature for possible further action.

We can win, and let's not forget that.

Check out PFAW’s website for more voting rights updates.

PFAW

Presidential Commission Issues Report on Election Administration

In his 2013 State of the Union address, President Obama announced the formation of a nonpartisan commission focused on improving our country’s system of voting. Yesterday, nearly a year later, the Presidential Commission on Election Administration (PCEA) issued its report.

As Ryan J. Reilly of The Huffington Post summarizes, the PCEA covered online voter registration and early voting, voter registration modernization, polling place resources and accessibility, poll workers, and more.

The PCEA recommendations are indeed a welcome addition to the voting rights debate, helping us move closer to the day when every eligible voter can register to vote and cast a ballot that counts.

Jon Greenbaum, Chief Counsel, Lawyers' Committee for Civil Rights Under Law:

We are encouraged by the recommendations in this report. If fully implemented, practical commonsense measures like early voting and voter registration modernization will improve voter participation and satisfaction.

Michael Waldman, President, Brennan Center for Justice:

The Commission’s report marks a significant advance in the way we think about voting. Too often voting issues have been marked by partisan discord. The Commission makes clear that there are achievable, bipartisan reforms that can be implemented now to transform voting in America. Most importantly, it recognizes that we can’t fix long lines until we first fix our outdated voter registration system.

Robert Brandon, President, Fair Elections Legal Network:

The bipartisan recommendations released from the Presidential Commission on Election Administration are a compilation of the good reforms advocates have been fighting for across the country. As the Commission points out, some of the reforms like online voter registration, expanded early voting, and increased poll worker training are already in place in various jurisdictions. But for real change to be made and access to voting improved, these reforms need to be broadly implemented in many more states. The responsibility now lies with election officials, and state and local elected officials to improve how elections are run in their communities as soon as possible. We will continue our work to promote these reforms and use the Commission’s work as support for these much needed changes.

In fact, much of what the PCEA recommends, and much of what these and other allies have long recommended, is covered by PFAW in Money Out, Voters In: A Guide to Democratic Reform. Released last fall, the toolkit is founded on our belief in a democratic system where all Americans have equal access to the voting booth and where all Americans, regardless of wealth, can express their views to one another and their government on a level playing field.

PFAW looks forward to using the PCEA recommendations as we continue to realize a 'Voters In' vision.

We must keep in mind, though, that the PCEA isn't the last word on American electoral reform. There is much more work to be done to enact needed reforms and to step up and counter threats when the right to vote is under attack.

Nor does the PCEA replace what the Voting Rights Act lost after the Supreme Court ruling in Shelby County v. Holder. PFAW and African American Ministers in Action welcomed last week's introduction of the Voting Rights Amendments Act, and we look forward to working with the House and Senate as they take up this vital legislation. It is imperative that this year, as soon as possible, the President sign into law a strengthened VRA. Please join the fight.

PFAW

PFAW Releases New Toolkit on Getting Money Out and Voters In to Our Democracy

Americans today face twin threats to the integrity of our elections. The threats are multifaceted and formidable, involving all branches of government at the local, state and federal level – from legislative bodies, to governorships, to courthouses. The aims are clear:

  • Manipulate the campaign finance system to get "the right people" elected.
  • Manipulate the balloting process to make it harder for "the wrong people" to vote.

These measures must be confronted. But we also need long-term proactive and pro-democracy strategies of our own.

The “Money Out, Voters In” campaign embodies this long-term vision premised on the concept of political equality, of one person = one vote.

We believe in a democratic system where all Americans have equal access to the voting booth and where all Americans, regardless of wealth, can express their views to one another and their government on a level playing field.

Through A Guide to Democratic Reform, a new toolkit released today by People For the American Way, we provide the structural framework for enacting this vision. We do not have all the answers, nor could we. We must embrace an evolution of ideas, tactics, and legislative language to achieve our goals. Yet, as the local, state, and federal initiatives cited herein show, much of that work is already well-underway.

Click here for information about critical allies and other resources.

PFAW

Texas Voter ID Law Would Have Prevented Just Four Instances of Voter Fraud

We’re already well aware that the voter ID laws that have been passed in many states are designed not to prevent fraud but to deter certain groups of people from voting, as several Republicans have admitted in the past. But even without those accidental moments of honesty, it would be clear that something other than an epidemic of voter fraud was motivating the passage of these laws, because there is nothing close to an epidemic of voter fraud.

Today, we have some new evidence of that. Wayne Slater of the Dallas Morning News reviewed the 66 voter fraud cases prosecuted by Texas Attorney General Greg Abbott since 2004 and found that just four cases would have been prevented by the state’s voter ID law. The law was passed in 2011 and blocked by a unanimous three-judge panel of federal judges until this spring, when the Supreme Court gutted the key enforcement provision of the Voting Rights Act. Just two hours after the Supreme Court handed down its decision, Abbott declared the voter ID law to be once again…which in turn led to another Justice Department lawsuit

The numbers that are supposedly driving Texas’ voter ID push are so ridiculous that they’re actually quite difficult to illustrate. Consider this: Texas had 13,594,264 registered voters in 2012. Four cases of fraud out of 13,594,264 voters works out to… actually, it’s a percentage so small my calculator won’t even display it. Of course, voter fraud is a serious felony that Texas is right to prosecute on the rare occasions that it happens. But Greg Abbott considers the crime widespread enough to pass a law that will disenfranchise thousands of voters who can’t access the ID they need, or will be confused or otherwise deterred by the restrictions and won’t go to the polls.

Perhaps the most telling part of Slater’s piece is this:

“Abbott acknowledged that voter ID wouldn’t have made a difference in most of the cases he has prosecuted.”

Instead, Abbott’s response to Slater’s data on the ineffectiveness of voter ID was as logical as can be expected: Obamacare!

So Abbott’s solution to prevent potential voter fraud is one that he admits won’t address most of the (very few) actual instances of fraud, yet he’s pushing ahead with instituting a law that will disenfranchise thousands? To me, it looks like he doesn’t even believe his own spin anymore. The only “problem” this law addresses is that some people want to vote for Democrats—and Greg Abbott knows it. 

PFAW

Congress Begins Work on New Voting Rights Act Legislation

The House and Senate held hearings last week to discuss a replacement for the federal preclearance formula of the Voting Rights Act, which was recently scrapped by the Supreme Court. Without a coverage formula, the Justice Department will no longer be able to enforce the VRA’s Section 5, which requires states and counties with histories of discriminatory voting practices to secure federal approval before changing their voting laws.

Senate Judiciary Chairman Patrick Leahy (D-VT) set the tone for the hearings by remarking that the Voting Rights Act has always been a bipartisan effort and praised Representatives John Lewis (D-GA05) and Jim Sensenbrenner (R-WI05) for their commitment to the legislation. Witnesses and committee members in both chambers defended the VRA’s preclearance requirement, pointing out that it is proactive, faster, and cheaper than the reactive litigation path of the still-standing Section 2.

Witnesses and committee members who oppose preclearance argued that Section 2 is sufficient and does not take too much time or money. They argued that Section 5 and the old Section 4 coverage formula intruded on state sovereignty. One witness, J. Christian Adams of the Election Law Center, went so far as to claim that racial discrimination is no longer a problem in this country, adding that it certainly doesn’t exist in the South.

Professor Spencer Overton, George Washington University Law School:

When I came into this building today, I went through a metal detector. And there wasn’t a due process violation, it was not sending me to jail, there are not metal detectors everywhere … just where there might be a problem. The metal detector is less expensive than some other security devices. It prevents problems before they occur. Pre-clearance is a reasonable device, when targeted at particular areas, to deal with problems.

Luz Urbáez Weinberg, City Commissioner, Aventura, FL:

The discriminatory practices of the 1960s which gave birth to the Voting Rights Act have gotten—what I call my 3 S’s: they have gotten extremely sneaky, extremely sophisticated, and extremely smarter.

Representative Ted Deutch (D-FL21):

Shouldn’t we recognize that voter ID laws seek to disenfranchise certain eligible voters? Not blatantly based on race, but based on requirements that have significantly and intentionally racial ramifications. Isn’t that evidence of institutionalized racism and shouldn’t that merit extra federal scrutiny and pre-clearance in those states that have passed those laws? Racism has grown more insidious in the years since the Voting Rights Act but it has not gone away. We have too much yet to do.

Those who oppose preclearance claim that racial discrimination is no longer a problem at the ballot box. But research and history tell us otherwise. Take action today – Tell Congress to save the Voting Rights Act!

PFAW

A Mixed-but-Mostly-Bad Supreme Court Term

Although today's decisions consigning DOMA and Proposition 8 to the dustbin of history are a triumph for our nation's constitutional values, the rest of the term ending today wasn't so great. The principle of equality under the law that carried the day this morning suffered in other cases. And we've seen too many cases where the Court made clear that we are truly in the Citizens United era, where laws and logic are pushed aside so corporate interests can be served. Following are some highlights – and lowlights – of the term that ended today.

The Right to Vote:

The 5-4 decision in Shelby County v. Holder gutted the heart of the Voting Rights Act. Although the vitally important Section 5 preclearance provision survives, the Court's opinion overturning a related provision means Section 5 doesn't actually apply anywhere. The Fifteenth Amendment explicitly empowers Congress to pass whatever laws it deems appropriate to prevent racial discrimination in voting. Nevertheless, the majority usurped this role and took it upon itself to declare the preclearance formula created by Congress unreasonable. A charitable explanation of this decision is that the majority was not living in the real world; more realistically, this was just another step in the right wing's long-term effort to erect more and more barriers to voting.

Protectors of the right to vote had a better result in Arizona's proof of citizenship case, Arizona v. Inter Tribal Council of Arizona. In that case, the Court ruled that states cannot force people who are registering to vote by mail using a federally approved form to also include proof of citizenship.

Employment Discrimination:

When a supervisor illegally discriminates against an employee, the employer is responsible under federal law. But a 5-4 Court in Vance v. Ball State ignored how workplaces really work and severely constrained who counts as a supervisor in employment discrimination cases. This will make it much easier for companies to avoid liability when someone is discriminated against by an employee who directs their day-to-day activities and exercises control over their work conditions but doesn't technically have the power to take “tangible employment actions” against them (like hiring or firing them).

On the same day, the same five far-right Justices in University of Texas Southwestern Medical Center v. Nassar made it much harder for employees to show that they were retaliated against for daring to complain about illegal discrimination. The fact that retaliation against complaints of race or sex discrimination is race or sex discrimination went out the window. The dissent accused the majority of being driven by their personal zeal to reduce the number of retaliation claims filed against employers, in stark opposition to the intent of anti-discrimination statutes.

Letting Corporations Ignore Laws Designed to Impose Reasonable Limits on their Power:

In Mutual Pharmaceutical v. Bartlett, the 5-4 majority took another step in immunizing certain drug manufacturers from state lawsuits against their dangerous products. Left to suffer was Karen Bartlett, who took a generic drug that caused 2/3 of her skin to deteriorate, burn off, or become an open wound, while also making her nearly blind. The majority twisted logic to conclude that the generic drug manufacturer could not comply with both state and federal laws, so state laws got chucked. Justice Sotomayor's dissent accused the majority of imposing their own policy rather than applying the law.

In American Express v. Italian Colors Restaurant, the same 5-4 majority gave large corporations a road map on how to force customers into agreeing to surrender rights they thought were protected by federal law. In this case, Amex used its monopoly power to force a local restaurant into an agreement to settle their disputes by one-on-one arbitration (not a lawsuit of any type, and not class-based arbitration), with terms that prevented it from ever being able to challenge the corporate giant's illegal exercise of monopoly power. The majority ignored precedent saying that courts should not enforce arbitration agreements that prevent parties from vindicating their federally protected statutory rights.

This trend extended even to human rights abuses in Kiobel v. Royal Dutch Petroleum. Victims of atrocities in Nigeria accused the oil giant of encouraging the Nigerian military to commit those atrocities, and they sued under the Alien Tort Statute. The Court unanimously concluded that American federal courts could not hear the claims of this particular set of plaintiffs. However, the five arch-conservatives set up a broad rule that makes it all the more difficult for such cases to be heard in the future.

Marriage Equality

The end of the term saw two important victories for marriage equality. In United States v. Windsor, the Court struck down Section 3 of the Defense of Marriage Act, which prohibits federal recognition of legal, state-sanctioned marriages of gay and lesbian couples. Justice Kennedy's 5-4 opinion recognized that DOMA's purpose was to impose a stigma and inequality onto same-sex married couples but not opposite-sex married couples. Under the Court's precedent, that is not a legitimate basis for a law, so it must fall. In the day's second case, Hollingsworth v. Perry, the Court ruled that the proponents of California's Proposition 8 lacked standing to appeal a federal court's ruling that Prop 8 was unconstitutional. So marriages in California can and will resume.

Fairness and Affirmative Action:

Many on the far right were hoping that the Supreme Court would forever ban affirmative action programs in public colleges and universities in Fisher v. University of Texas. But that is not what happened. The Supreme Court issued a 7-1 opinion that pointedly did not overrule past cases (like 2003's Grutter v. Bollinger case) stating that public universities have a compelling interest in the educational benefits that flow from having a diverse student body. But they did rule that the lower court, in upholding the Texas program without the type of trial that had preceded the Grutter case, had not sufficiently inquired into whether the program is narrowly tailored to meet its purpose. The dissenter was Justice Ginsberg, who dissented because she felt there was already enough evidence to support UT's case without the need to remand it back to the lower court.

What's Next?

The Court has already announced it will be hearing cases next term that threaten to:

  • undercut the president's authority to make recess appointments to counter partisan efforts to hobble federal agencies by keeping them from operating (NLRB v. Noel Canning);
  • undercut vitally important campaign finance limits (McCutcheon v. FEC);
  • weaken the Fair Housing Act (Mount Holly v. Mt. Holly Gardens Citizens in Action);
  • allow towns to regularly conduct sectarian prayers at public meetings (Town of Greece v. Galloway);
  • enable states to put affirmative action bans into their constitutions (Schuette v. Coalition to Defend Affirmative Action); and
  • prevent the EPA from adopting critically important rules on air pollution that crosses state lines (EPA v. EME Homer City and American Lung Association v. EME Homer City).

As Bette Davis might say, “Fasten your seatbelts, it's going to be a bumpy term.”

PFAW Foundation

The Smoking Gun in the Voting Rights Case

Lest anyone be fooled into thinking that yesterday's 5-4 ruling crippling the Voting Rights Act was anything but five justices substituting their ideologies for the law, let us recall that Justice Scalia showed his cards during oral arguments in February.

  • He denigrated the VRA provisions at issue as a "racial entitlement."
  • He said that "this is not the kind of question you can leave to Congress," even though the 15th Amendment specifically says that "Congress shall have power to enforce this article by appropriate legislation."
  • He cited the "wonderful" name of the Voting Rights Act and the lopsided congressional majorities in favor of reauthorizing the law in 2006 as evidence that Congress wasn't sincere when it extended the law.

All this, coming from the Justice known for claiming fealty to the text of the laws.

It was no surprise to find Scalia voting to undercut the Voting Rights Act. But his loss of message control during oral arguments makes clear that this decision is about politics and power, not principle.

PFAW

Representative John Lewis: "There's other bridges to walk across"

Just 11 days ago, on June 14, 2013, Representative John Lewis was honored as a 2013 Progressive Champion by the American Constitution Society for Law and Policy.


Starting at 4:13

Representative Lewis offered an impassioned call to action:

We've come too far. We've made too much progress to stop now or to go back. But we must move forward.

After recalling the ultimate sacrifice made by his contemporaries from the Civil Rights Movement, Representative Lewis continued:

We must be prepared to fight the good fight. And never, ever give up.

He was specifically urging his audience to press on regardless of the Supreme Court's imminent ruling in Shelby County v. Holder, which we now know gutted the Voting Rights Act. Section 5 remains on the books and remains constitutionally valid, but without Section 4, no part of the country is actually covered by Section 5.

As Representative Lewis marks the 50th anniversary of his chairmanship of the Student Nonviolent Coordinating Committee (SNCC), we cannot forget that this is a man who put his life on the line to get the VRA passed in the first place.

On March 7, 1965, what became known as Bloody Sunday, voting rights marchers were beaten in their attempt to cross the Edmund Pettus Bridge in Selma, Alabama. Fifty-eight marchers were treated at a local hospital for their injuries, including then twenty-five-year-old Lewis. It was a tragedy that touched many, including members of what would later become the PFAW Foundation family.

Representative Lewis concluded his ACS remarks with a message to those of us who weren't there that day in Selma:

You didn't walk across the bridge, but there's other bridges to walk across.

The Supreme Court's ruling in Shelby is a setback, or as Representative Lewis put it to ABC's Jeff Zeleny earlier today:

What the Supreme Court did was to put a dagger in the very heart of the Voting Rights Act of 1965.

But it's also part of the voting rights bridge that we must continue fighting to get across.

PFAW Foundation

In Voting Rights Decision, Roberts Rewrites the 15th Amendment

The Roberts Court, as part of the right wing’s ongoing efforts to keep “the wrong” people from voting, put a monkey wrench into the mechanism of the greatest civil rights legislation in American history. It is now up to Congress to quickly repair this act of intentional sabotage.

Under Section 5 of the Voting Rights Act, Congress requires certain covered states and counties to submit any changes in voting and election laws to the Department of Justice or a federal court for approval before they can go into effect. The covered areas are spelled out in Section 4. In Shelby County v. Holder, with an opinion written by Chief Justice Roberts, the five far-right Justices declared that Section 4’s coverage formula is unconstitutional. Section 5 remains on the books and remains constitutionally valid, but without Section 4, no part of the country is actually covered by Section 5.

Congress adopted the VRA under the powers granted by the 15th Amendment, which prohibits racial discrimination in the right to vote. Critically, this post-Civil War amendment explicitly gives Congress the power to enforce its mandate “by appropriate legislation.” On multiple other occasions, Congress has done just that, adopting and re-authorizing Sections 4 and 5 several times, most recently in 2006. The Supreme Court has upheld the statutory scheme several times as being within Congress’s authority to combat racial discrimination in voting rights. During the most recent re-authorization in 2006, after holding 21 hearings and amassing an evidentiary record of more than 15,000 pages, Congress exercised its discretion to maintain Section 4’s coverage areas as they have been.

But today – with a majority made possible by the assault on voting rights that gave George W. Bush the presidency and thus put John Roberts and Samuel Alito on the nation’s highest court – the five arch-conservatives ruled that Section 4’s coverage formula is based on old patterns of racial discrimination that no longer exist. According to the majority, states have “equal sovereignty” and must be accorded the same rights absent compelling circumstances such as those that compelled Congress to adopt Sections 4 and 5 in the 1960s.

As Justice Ginsberg’s dissent points out, the concept of “equal sovereignty” for states has always referred to the terms under which states enter the Union. So, for instance, Congress cannot require a new state to surrender its right to operate a sports gambling program as a condition of entering the Union. But Congress can and does treat states differently all the time. For instance, as the dissent points out, under federal law, only states that operated or permitted sports-related gambling schemes between 1976 and 1990 are currently allowed to have such schemes.

The Constitution gives Congress enormous discretion to decide what states should be covered by a provision like Section 5. Using the bizarre notion of “equal sovereignty of the states,” the far-right Justices usurp that role, declaring that Congress should have picked another set of states and counties. So much for the 15th Amendment’s grant of that discretion to Congress.

So where does this leave us? Well, the Court did not rule that Section 5 itself is unconstitutional, only that Congress’s decision as to where Section 5 applies is unconstitutional. So, for now, no place is protected by the preclearance provisions of Section 5. But Congress can – and must – immediately act to determine (again) the appropriate coverage areas. Hopefully, their choice won’t offend John Roberts and his ideological companions on the Court.

PFAW Foundation

Jamie Raskin Discusses Key Court Cases With Progressive Leaders

Earlier this week, on a call hosted by People For the American Way, senior fellow Jamie Raskin discussed some of this term's most important Supreme Court cases in an exclusive conversation with members of our affiliate foundation's leadership networks: the African American Ministers Leadership Council, the Young Elected Officials Network, and Young People For. As the invitation stated:

In response to a national groundswell against racism, Congress passed the Voting Rights Act … Will the Supreme Court strike down the premier civil rights legislation of the twentieth century?

In response to a different type of groundswell, Congress passed the Defense of Marriage Act and California adopted Proposition 8. Will the Supreme Court protect the rights of gay and lesbian couples?

In response to a campus that didn't reflect diversity, the University of Texas adopted an affirmative action plan. Will the Supreme Court call that an unconstitutional act of racism?

Cases like these and so many others make it clear that the nation's courts matter. Struggles to adopt policies, for both good and evil, don't end when they're adopted by Congress, states, cities, universities, or businesses. The courts often get the last word.

And their decisions affect all of us profoundly.

Professor Raskin discussed these cases and answered questions from participants from around the country.

A recording of the call can be found here:

PFAW