Editorials: Bush v. Gore as Precedent in Ohio and Beyond | Richard Hasen/ACS

Almost from the moment in December 2000 that the Supreme Court decided its controversial opinion in Bush v. Gore ending the recount in Florida, there has been great debate about whether the case had any precedential value and, assuming it did, what precisely its equal protection principle stood for. Was it a one-day-only ticket? Is it a case about equality of procedures in the conduct of a jurisdiction-wide recount? Or does it require broader equal treatment of voters, so as to fulfill Bush v. Gore’s admonition against the government, by “arbitrary and disparate treatment, valu[ing] one person’s vote over that of another”? We may finally find out the case’s precedential value as soon as the 2016 elections. At the Supreme Court, Bush v. Gore has been a legal Voldemort, a case whose name a Court majority has dare not spoken since 2000. Only Justice Clarence Thomas has cited the case, in a dissenting opinion, and not speaking on its equal protection principles.

Editorials: Republicans’ coup de grace on voting rights? | Scott Lemieux/The Week

Last week the Supreme Court heard oral arguments in a case called Evenwel v. Abbott. The case involves an issue of increasing importance to American politics: congressional districting. It got to the Supreme Court because conservative litigators with a successful track record of fighting against the right to vote are trying to turn the logic of pro-voter rights decisions on their head. And it’s very possible that they may succeed again. This most recent battle in the voting rights war involves two of the Warren Court’s most important decisions. One of the tactics that state legislatures used to disenfranchise African-Americans was to draw district lines (or refuse to revise them) in ways that left minority voters massively underrepresented. In Alabama in 1964, for example, some counties included 40 times more people than others. In Baker v. Carr and Reynolds v. Sims, the Supreme Court held that such schemes were illegal. States were required to adhere to a “one person, one vote” standard when apportioning their legislatures. Combined with robust enforcement of the Voting Rights Act, these landmark cases helped to end Jim Crow disenfranchisement schemes.

Editorials: Bush vs. Gore’s ironic legal legacy | Jamie Raskin/Los Angeles Times

Fifteen years after Bush vs. Gore, 15 years after the Supreme Court intervened in a presidential election, a single sentence in the majority opinion remains one of the great constitutional brainteasers in our history. If we take the sentence at face value, it’s nonsensical; if we ignore it, we might just be able to improve our dysfunctional election system, at least modestly. As we all know, the Supreme Court on Dec. 11, 2000, ordered an end to ballot-counting in Florida, effectively calling the election for the national popular vote loser, George W. Bush. And as most fair-minded legal experts agree, the rationale for leaving more than 100,000 ballots uncounted was convoluted — an extravagant and unprecedented twist on Equal Protection law.

Editorials: The public doesn’t support restrictive voter ID laws, but many new ones will be in force in 2016 | Herman Schwartz/Reuters

Defenders of photo ID laws regularly cite public opinion polls that show widespread support for their arguments. Yet these polls reveal no such support, and they prove nothing about this new restrictive legislation because the polls’ questions cover a far broader range of IDs than the actual laws accept as proof of identity. Many of the new laws do not accept a college student ID, for example, or an out-of-state driver’s license; but the polls drawing favorable responses encompass such IDs. As always, the devil is in the details. When Republicans won full control of 21 states in 2010, they promptly adopted measures to restrict and deter voting by minorities, the poor and the young, all key components of the Democratic base. One of the most effective measures requires voters to show one of a restricted set of photo IDs issued by either a state or federal government. Government studies have shown that these laws can prevent or deter significant numbers of poor and minority voters from voting. By 2015, 13 states had adopted what the National Conference of State Legislatures considers a “strict” voter photo ID law, including seven Southern states formerly subject to federal oversight under the Voting Rights Act.

Editorials: Bush v. Gore in 2000: Partisans still in charge | Richard Hasen/Orlando Sentinel

This month marks the 15th anniversary of the U.S. Supreme Court’s 2000 decision in Bush v. Gore, which ended a recount of ballots in Florida, and assured the election of Republican George W. Bush over Al Gore as our 43rd president. We can all breathe a sigh of relief that we haven’t had another election meltdown with such stark national ramifications for the past decade and a half, but that’s because we’ve been lucky, not smart. There were lots of lessons we could have learned from the Florida fiasco with its “hanging chad” punch-card ballots and its slew of lawsuits: that our voting technology was quite poor, and in a close election, the margin of error would exceed the margin of victory; that handing political partisans discretion to make choices over how to count and recount the votes can lead to both partisan decision making and lack of confidence by those on the losing side in the fairness of the process; and that in close elections, we can simply count on the loser in a razor-thin race to gracefully accept defeat and move on.

Editorials: The Court Takes Up One Person, One Vote | The New York Times

On its face, the constitutional doctrine of “one person one vote” seems about as clear as they come: no one’s vote should count more than anyone else’s. In practice this means all state legislative districts must contain roughly equal numbers of people. The court has never defined who counts as a “person,” but most states count all people living in the district, not only those eligible to vote. This issue was before the Supreme Court on Tuesday in a dangerous lawsuit from Texas that could upend the widely accepted method of drawing district lines that is based on the number of people, not voters. Through a series of Supreme Court rulings in the 1960s, the justices developed the one-person-one-vote doctrine in response to persistent abuses of the line-drawing process by white legislators, who diluted the political power of cities that have large populations of African-Americans and other minorities.

Editorials: Update Pennsylvania’s election system | ACLU/Pittsburgh Post-Gazette

Updates are a cornerstone of modern life. Computers and smartphones require regular software updates. When people experience significant life events — graduation, a new job, a move, getting married or having a child — one of the first things they do is update their social-media profiles. Just as we update our operating systems and social-media profiles, we should regularly update our public policies so that they meet the needs of today’s citizens. In the general election last month, fewer than a quarter of Pennsylvania’s registered voters turned out to vote. With few high-profile races on the ballot, this low turnout is not surprising. But, even in our most recent presidential election year, Pennsylvania ranked 29th among the 50 states in voter participation. It’s clear from these numbers that our system is overdue for an update.

Editorials: History Draws a Line on ‘One Man, One Vote’ | Noah Feldman/Bloomberg

On Tuesday, the Supreme Court heard oral arguments on whether states’ drawing of legislative districts should be based on total population, as it is now, or voter population, as some conservatives want. The case, Evenwel v. Abbott, raises a fundamental question about who is represented in our democracy. But as so often happens, the oral argument took a turn in the direction of our history with a focus on the drafting of the Constitution. The key moment came when Justice Elena Kagan asked petitioner William Consovoy what would seem like devastating question: The Constitution requires counting total population when apportioning congressmen, so why should the states have to count voters rather than population?

Editorials: SCOTUS wrestles with redistricting cases | Josh Gerstein/Politico

The politically contentious topic of redistricting was front and center at the Supreme Court Tuesday, as the justices wrestled with a pair of cases challenging what factors states can and cannot consider as they draw lines. One case, out of Texas, looks at whether states should be required to take into account the number of voting-age citizens instead of or in addition to broader measures of population when setting up political boundaries. If the justices rule that the “one person, one vote” principle should be measured in part based on eligible voters, areas with high numbers of children or immigrants will likely see a loss of political power, while areas with fewer children and more U.S. citizens see a boost to their clout. Another case, out of Arizona, addresses whether political partisanship and concerns about qualifying for Justice Department approval under the Voting Rights Act are valid reasons to cause imbalances in the population of various districts.

Editorials: What if Going Viral Matters More Than Iowa? | Emma Roller/The New York Times

The candidates have posed next to a life-size butter cow in Des Moines, ridden motorcycles down the streets of Boone, bought 3,500 ears of sweet corn in Windsor Heights and given helicopter rides to state fair attendees. This is just what it means to run for president: ritual fun, meat-on-a-stick and all, in the great state of Iowa. “Pretty much every day in Iowa, you can go listen to somebody who wants to be president,” Cody Hoefert, the vice chairman of the Iowa Republican Party, said. But is the presidential race listening to Iowa? Well before Feb. 1, when Iowa voters head to their caucuses, the 2016 contest is already a national campaign. National polls, not early voting states, have dictated who gets stage time in the Republican debates. The candidates who did invest early in Iowa have faltered and, in some cases, left the race entirely. And some presidential hopefuls have found more success from a viral social media post than from a day out on the stump. (One notable exception may be Senator Ted Cruz, who dethroned Mr. Viral himself, Donald J. Trump, from his front-runner status in one Iowa state poll on Monday).

Editorials: Justices will get no satisfaction with a new ‘one person, one vote’ rule | Richard Hasen/Los Angeles Times

At the Supreme Court on Tuesday, the justices struggled over the meaning of the 1960s-era “one person, one vote” rule. Should Texas legislative districts contain an equal number of people — as they do now — or an equal number of eligible voters, as the plaintiffs in Evenwel vs. Abbott demand? Ultimately, the justices may have no choice but to heed some other words written in the 1960s: You can’t always get what you want. Before the 1960s and the “reapportionment revolution,” there were few federal constitutional constraints on how district lines were drawn. In practice, this meant that many states gave much greater voting power to rural areas (with much smaller populations) than urban areas. In California, for example, as J. Douglas Smith explained in his book “On Democracy’s Doorstep,” despite huge increases in the state’s urban population, control of the Senate “remained in the hands of a shrinking rural and small-town minority.”

Editorials: At the Supreme Court, Equal Representation Is in Danger | David Gans/New Republic

This morning, the Supreme Court heard oral argument in the case of Evenwel v. Abbott, a huge case about a fundamental question that goes to the very heart of our Constitution’s system of representative democracy. Who counts when states draw election districts—all the people or only voters? The case was initiated by activists who seek to empower certain voters at the expense of the entire population, which in Texas would tilt power toward more rural and, yes, conservative areas of the state. But the Constitution settles this question, and Evenwel should begin and end with the text and history of the Constitution. The Constitution guarantees equal representation for equal numbers of people. Our Constitution is based on the idea that all persons—whether or not they are voters—should be represented in our democracy. This is apparent in the Census Clause, which requires an “actual Enumeration” of all the people of the nation for purposes of federal representation, the disbursement of federal funds, and other ends. It is also contained in the Fourteenth Amendment, which requires “counting the whole number of persons in each State” and guarantees “equal protection of the laws” to any “person,” not merely voters. In these and other ways, the Constitution is clear: Ours is a representative democracy open to all. Indeed, Sue Evenwel’s argument that representation should be based only on the voting population was flatly rejected during the debates over the Fourteenth Amendment, when the amendment’s framers reaffirmed total population as the Constitution’s system of representation.

Editorials: Justices hard to read on Arizona redistricting plan | Amy Howe/SCOTUSblog

“Where’s the beef?” That was the question from Washington attorney Paul Smith, arguing at the Court today on behalf of the five-member independent commission charged with drawing new state legislative maps for Arizona. The Justices heard oral arguments in a challenge by several Arizona voters to the maps that the commission drew after the 2010 census; the voters allege that the commission violated the principle of “one person, one vote” when it intentionally put too many residents into Republican-leaning districts while putting too few into Democratic-leaning districts. The Court’s four more liberal Justices seemed inclined to agree with Smith, but some of the Court’s more conservative Justices were harder to read. Because a ruling in favor of the challengers could potentially affect redistricting maps around the country, both sides could be on tenterhooks waiting for the Court’s eventual decision.

Editorials: A Gift From Congress, to Congress | The New York Times

Congress is getting ready to give itself loads of extra campaign dollars again this holiday season. The catchall spending bill scheduled for a vote by Dec. 11 is what’s known in Washington as a “Christmas tree”: legislation festooned with amendments that are gifts to legislators and their home districts, or that create new, ideologically based policy that has little to do with the bill’s purpose, which is funding the government. Now the Senate majority leader, Mitch McConnell, and some House Republicans are reportedly planning to add four campaign finance riders to the $1.1 trillion bill’s already-groaning branches, hoping to help Republicans in elections next year. Mr. McConnell has personally put forward the rider that would expand his colleagues’ campaign coffers. It would allow the National Republican Senatorial Committee and its Democratic counterpart to escape restrictions on expenditures they make in coordination with an individual candidate.

Editorials: Does “one person, one vote” yield to partisan politics or the Voting Rights Act? | Amy Howe/SCOTUSblog

In 2000, Arizona voters amended the state’s constitution to give authority over redistricting to a five-member independent commission. Taking that authority away from the state legislature was supposed to take the politics out of redistricting – a key factor in a case before the Supreme Court last Term, in which the Justices rejected a challenge to the commission’s power to draw federal congressional districts. But a lawsuit now before the Court brought by a group of Arizona voters alleges that the commission, while supposedly non-partisan, is actually anything but. During the redistricting that followed the 2010 census, Wesley Harris and his fellow challengers contend, the commission deliberately put too many voters in sixteen Republican districts while putting too few in eleven Democratic districts. This means, Harris argues, that the votes of residents in the overpopulated districts effectively count less than the votes of their counterparts in the underpopulated districts – a violation of the constitutional principle of “one person, one vote.” The Supreme Court will hear oral arguments in Harris’s challenge on Tuesday, in a case that – depending on how broadly the Justices rule – could affect legislative maps far beyond Arizona.

Editorials: Up Next at the Supreme Court: A Challenge to Equality for All Americans | David H. Gans/New Republic

The country’s most dangerous legal mastermind returns to the Supreme Court this week. Ed Blum is not a lawyer. Instead, he recruits plaintiffs, hires counsel, and helps to finance litigation designed to move the law sharply to the right on issues of race and voting. Two years ago, Blum helped to bring two cases to the Supreme Court, Shelby County v. Holder, which sought to gut the Voting Rights Act, and Fisher v. University of Texas, which was designed to strike down affirmative action in college admissions. Now, with two cases from Texas, including a second trip to the Supreme Court for the Fisher case, he is hoping to rewrite the Fourteenth Amendment’s broad guarantee of equality, seeking to sharply limit affirmative action on college campuses and deny unnaturalized immigrants, children, and others equal representation in state legislatures. Blum’s campaign seeks to turn the Fourteenth Amendment into an obstacle to efforts to ensure real equality, denying the government the power to redress our nation’s long history of racial discrimination.

Editorials: Let Math Save Our Democracy | Sam Wang/The New York Times

Partisan gerrymandering is an offense to democracy. It creates districts that are skewed and uncompetitive, denying voters the ability to elect representatives who fairly reflect their views. But on Tuesday, the Supreme Court will hear a case in which a small dose of math can help the justices root out these offenses more easily. Redistricting may seem unglamorous, but it comes up repeatedly before the court. Last month, the justices heard a case that could streamline the path by which they receive such complaints. In oral arguments, Chief Justice John G. Roberts Jr. expressed his fear that his court could be flooded with complex redistricting cases. But he needn’t be concerned. Tuesday’s case gives the court a chance to adopt a simple statistical standard for fairness that cuts through the legal morass. In the United States legislative system, district maps must be redrawn every 10 years, after each census, a process that legislators manipulate to gain advantage.

Editorials: Voter Fatigue in New York | The New York Times

Even the most civic-minded New Yorkers may become exasperated next year when they are asked to vote in four separate elections. This extra burden on voters is yet another sign of the enduring dysfunction in Albany. New York State lawmakers created this problem because it’s easier on the politicians, even though it’s costly and harder on the voters. New York’s presidential primary is set for April 19. Congressional primaries are expected to be held on June 28, and state legislative primaries on Sept. 13, with the general election on Nov. 8. There is no reason the state primary can’t be held on the same day as the congressional primary, thus eliminating the extra election and saving the state $50 million.

Editorials: To purge voters, or not, in Ohio | Akron Beacon Journal

In a clash foreshadowing next year’s presidential election, Democrats in the Ohio House and voter activists now want big changes in how voter registration rolls are purged in the state. Experts consider registration the No. 1 factor in determining participation, and a bill unveiled last week by state Rep. Kathleen Clyde, a Kent Democrat, seeks to stop state officials from removing from the rolls voters who move within the state or who have been inactive. Her bill still would allow purging voters who move out of state and would leave intact the removal process for those who die or request to be removed.

Editorials: Evenwel and the Next Case | Daniel Tokaji/ACS

On Tuesday, the Supreme Court will hear argument in Evenwel v. Abbott. The subject of the case is the meaning of the “one person, one vote” rule. The appellants argue that the Constitution requires equality of eligible voters among legislative districts. This argument is unlikely to carry the day – in fact, the appellants may well lose unanimously. Evenwel is still an important case, however, because what the Court says will affect how states draw state legislative districts after the next census and possibly even sooner. The hard question isn’t the disposition of Evenwel but rather its implications for the next case. The “one person, one vote” rule requires that legislative districts be drawn on the basis of population. Where single-member districts are used, each district must be of approximately equal population. In Reynolds v. Sims, the Supreme Court held that the “one person, one vote” rules applies to state legislative districting. This ended the states’ practice of using districts with very different populations – some with disparities over 40:1 – which generally advantaged rural areas at the expense of urban and suburban areas.

Editorials: Alabama’s Controversial Voter-ID Law Is Challenged In Court | Ari Berman/The Nation

Yesterday marked the 60th anniversary of the Montgomery bus boycott, launched when Rosa Parks refused to move to the back of a segregated bus. Ten years before her historic act of civil disobedience, Parks tried to register to vote. She was denied three times and had to pass a literacy test and pay a poll tax before finally registering. Ten years after the bus boycott, Parks helped lead the historic march from Selma to Montgomery and attended the signing of the Voting Rights Act of 1965. The VRA had a dramatic impact in Alabama, increasing the number of black registered voters from 23 percent in 1965 to 69 percent by 2012. But in recent years the state has been moving backward on voting rights. Alabama passed a strict voter ID law in 2010, then challenged the constitutionality of the VRA in 2013.

Editorials: Next Chance To Gut Campaign Finance Law Heads For Supreme Court | Paul Blumenthal/Huffington Post

The next domino in the effort to erase campaign finance restrictions has just been pushed. A case attacking the McCain-Feingold reform law’s ban on unlimited contributions to political parties has been set on a path that almost certainly ends at the Supreme Court. With the help of Citizens United lawyer Jim Bopp, the Republican Party of Louisiana and the Jefferson Parish and Orleans Parish Republican Party sued to allow state and local parties to raise enormous sums under looser state laws and then spend them on federal elections. That practice is currently banned by restrictions on the use of “soft money” — unlimited contributions to political parties that pay for so-called party-building activities, as opposed to supporting specific candidates. The ban came after Senate investigations found that both parties had abused their soft money accounts to evade campaign contribution limits. Money meant for party-building activities was spent on ads promoting candidates. The Senate’s investigations also found that soft money donors were provided increased access and influence in policy making.

Editorials: States Are Falling Short In Providing Voter Access | Brenda Wright and Adam Ambrogi/National Law Journal

Shelley Zelda Small is a 62-year-old Los Angeles resident who believes in voting as a civic duty and has voted in every election since she was 19 years old. So when she moved from Encino, California, to West Hollywood in August 2014, and reported her address change to the Department of Motor Vehicles, she made sure to ask the DMV to update her voter registration as well. But when she arrived at her local polling place last November, she was told she was not on the registration rolls and was turned away – for the first time in her life, Small lost her opportunity to vote. The good news is that, due to a new law approved this last month in California and advocacy by national and California-based voting rights groups, the DMV will be adopting an automated voter registration process that will, in most cases, seamlessly update voter registrations when voters report a move — solving the problem for Small and millions more like her. In mid-November, another state took a major step in the right direction. Alabama, conceding that it had never truly complied with a registration law, settled a case with the U.S. Department of Justice. The agreement made important changes to how the state motor-vehicle agencies support voter registration for eligible Alabama residents. The case is notable because the DOJ has not brought an action against a state under the “motor voter” provision of the National Voter Registration Act since at least 2002. California and Alabama were not alone in needing to improve its registration process. It appears that many states are falling short on their obligations to make voter registration widely accessible at DMVs and other agencies serving the public, according to an extensive investigation by Demos, a public policy group. Potentially tens of millions of eligible ­voters are being left off the voter rolls as a result.

Editorials: Election holiday a bad idea | Albany Times -Union

The recent dismal voter turnouts in New York are fostering a slew of ideas to encourage people to exercise what should be their cherished right. Just 29 percent of those eligible cast ballots during the 2014 statewide races, ranking it second to last for turnout among the 50 states, according to the group Nonprofit VOTE. The most recent presidential election turnout was the lowest since 1940, according to the U.S. Election Project. A new plan would turn the first Tuesday following the first Monday in November each year into a school holiday. But suspending education on Election Day, a measure that is being pushed by a couple of state lawmakers, is hardly a remedy for the problem of low turnout. It’s not the presence of young people in school buildings that is keeping would-be voters away. Many real obstacles, ranging from sloppy record-keeping to arcane rules and regulations, are a big cause. The most challenging hurdle may be voter apathy, fueled by an acrimonious political climate.

Editorials: Illinois redistricting fix has momentum; keep it going | Rockford Register Star

Some of our friends are highly skeptical of the Independent Maps movement to restore fairness to Illinois political map making. “What good will it do?” “Voters are too turned off to get engaged again.” “Change is too hard and it takes too long.” Reasonable thoughts. Let’s start with the last statement. Nothing worth attaining ever comes easily or quickly. The best argument for change is whether you are satisfied with the political makeup of Illinois. Most people who don’t have a seat in government will tell you that they are not. The current budget stalemate is just one example of a dysfunctional state government. It’s going to take a long time to get the kind of change needed to get Illinois back on track, but if we don’t start now that change will never happen. Voters are turned off because they really don’t have a choice when they walk into their polling places. In 2014, about 60 percent of elections for the General Assembly were uncontested. Incumbents won 97 percent of the time.

Editorials: North Carolina’s regrettable use of $8 million | The Charlotte Observer

We’ve long wondered what the legislature’s wrong-headed laws are costing North Carolina, both in reputation and in taxpayer dollars to defend them in court. It may be impossible to put a precise dollar figure on the state’s reputation, but we now know the legal cost: More than $8 million. The Associated Press reported last week that the Republican-led General Assembly has budgeted $4 million a year for the next two years to pay outside lawyers to defend controversial N.C. laws.

Editorials: Tossed ballots show need to update Ohio law | The Columbus Dispatch

There was disturbing news from the Summit County Board of Elections last week. The absentee ballots of 861 voters who mailed their selections to the board were disqualified, even though they had done nothing wrong. What their ballots lacked was a postmark, or at least the kind required by Ohio law. The disqualified ballots from the Nov. 3 election represent 9 percent of the mailed-in absentee ballots in the county. No one familiar with Ohio’s role in presidential elections could ignore easily the thought that such a disqualification rate next year — multiplied across this battleground state — could throw the national results into controversy and lawsuits.

Editorials: Venezuela’s Electoral System Unfairly Maligned | Lauren Carasik/Al Jazeera

On Dec. 6 Venezuelans will go to the polls to elect their representatives in high-stakes legislative elections. The vote comes amid international scrutiny over the integrity of the country’s electoral process. The U.S. government, the Organization of American States (OAS) and human rights groups have all called for credible elections. Some in the U.S. media have already indicted the elections’ validity. But these critics ignore the fact that thousands of domestic observers and hundreds of international monitors from the Union of South American Nations and other groups have already signed on to oversee the elections. It is clear that much of the diplomatic posturing is not meant to protect Venezuela’s electoral integrity but to further delegitimize the government of President Nicolás Maduro. No election system is perfect, but Venezuela has one of the most efficient, secure and transparent electoral systems. “The election process in Venezuela is the best in the world,” said former President Jimmy Carter in 2012 — praise echoed by other neutral observers.

Editorials: Indiana redistricting under review | LWV/Journal Review

Few political processes are more important or consequential than that of defining or drawing districts for legislative bodies. Whoever controls where district lines are drawn wields immense power to determine voters’ choices at the polls, election outcomes and whose interests are more or less effectively represented in our legislative bodies. Little wonder then that legislative districting is an issue of great concern to the League of Women Voters and all citizens interested in open, fair and effective representative government. The U.S. Constitution gives the power to regulate the time, place and manner of Congressional elections to the individual state legislatures. The Indiana Constitution, as is true of most states, gives the power and responsibility to define the state’s legislative and congressional districts to the General Assembly. Thus, not only does the state legislature define districts for congressional elections, but it also determines the make up of its own members’ districts. For more than two centuries, members of state legislatures, the legislative political parties and other special interests have used the districting process to advance their own political objectives. Incumbent legislators want districts they can win. The majority party in a legislative chamber wants to maintain its dominance by drawing districts to its advantage. Special interests, if they are powerful in the state, try to protect themselves by influencing the districting process.