The Voting Rights Act of 1965 is one of the most important civil rights statutes in American history. The constitutionality of a crucial provision of the act—Section 5—is in doubt, and the case that challenges it, Shelby County v. Holder, will be argued before the Supreme Court on Feb. 27. Section 5 is important because of another provision, Section 2 of the Voting Rights Act, which prohibits voting practices or procedures that discriminate on the basis of race or against certain language minority groups. Under the 1982 amendments to Section 2, the act is violated by state or local laws that have the effect of disadvantaging minority voters. Lawsuits may be brought to challenge state or local actions that are alleged to violate Section 2. But Congress, in adopting the Voting Rights Act, concluded that allowing lawsuits to challenge election procedures was not adequate to stop discrimination in voting. Congress was aware that Southern states especially often invented new ways of disenfranchising minority voters. Section 5 of the Voting Rights Act was adopted to prevent such actions. It applies to jurisdictions with a history of race discrimination in voting and requires that there be preapproval—termed “preclearance”—of any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” in any “covered jurisdiction.” The preapproval must come either from the U.S. Attorney General, through an administrative procedure in the Department of Justice, or from a three-judge federal court in the District of Columbia through a request for a declaratory judgment.
Partisanship within Congress has raised the stakes for Supreme Court statutory law rulings, since bipartisan legislative overrides of Supreme Court interpretations have greatly diminished and partisan overriding is much rarer, argues a paper from University of California-Irvine law professor Richard Hasen. In a paper to be published in the Southern California Law Review, Hasen also warns that a similarly politically polarized Supreme Court in combination with a highly partisan Senate could make a future court nomination a major political crisis and ultimately diminish the public legitimacy of the court. Hasen’s analysis of congressional overrides of Supreme Court interpretation of federal statues–something that requires a new federal law, as opposed to a constitutional override, which requires a new constitutional amendment–shows they fell to 2.8 overrides every 2 years on average from 2001 through 2012 from a recent peak of 12 overrides every 2 years on average from 1975 through 1990.
This May’s primary election ballot likely will be somewhat confusing in most counties, due to large numbers of candidates seeking party nominations for school boards, municipal government seats, tax collector positions and judgeships. In Lackawanna County that likely will be compounded by at least one but, probably, two referendums on the structure of the county government. One, approved by the county commissioners, will ask voters if they approve consolidating the recorder of deeds, clerk of judicial records and register of wills offices into a single office, and converting the sheriff’s job from an elected to an appointed position. Since it is unknown how voters will respond, candidates will seek nominations for the deeds and wills offices and sheriff’s office, in case voters decide to retain the current system. (The clerk of courts position is not on the ballot until 2014.)
Mrs. Maryam Rajavi, President-elect of the Iranian Resistance, on Saturday said Iran’s clerical regime is facing an “insoluble crisis” and the ruling theocracy has entered its final phase. “The upcoming presidential election has aggravated a power struggle and this internal crisis is accelerating its downfall,” Mrs. Rajavi said in a speech in an international conference in Paris. Mrs. Rajavi said the upcoming election is a sham since it only will allow candidates to run who support the regime’s violent theocracy. These individuals have no legitimacy in the eyes of the Iranian people and will be boycotted nationwide.
If the Supreme Court strikes Section 5 of the Voting Rights Act, what next? It’s a depressing question, with a depressing answer. That’s because no practical substitute solves the problem that Section 5 solves. Section 5 is special medicine for broken democracies. It demands that the federal government sign off on election changes, in areas where less than half the eligible population was able to vote in 1964, 1968 or 1972. Majority rule is grade-school civics. But in these jurisdictions, a majority of the electors could not cast a valid ballot. That is broken democracy. In these areas, democracy was often broken by design ‑ crafty tactics to lock out the most vulnerable and shifting representational schemes to dilute the influence of the few who were able to sneak through. As a result, Congress enacted Section 5 as a backstop. It does not demand utopia. It asks only that new laws not make things worse. Thankfully, the worst of Jim Crow is gone. But four decades have not wholly healed democracies broken for more than a century.
Edmonton city council would be wise to exercise real caution before introducing Internet voting into the municipal election system. As tempting as it might be to blaze an electronic trail into the local democratic process, the notion of a vote that’s only a click away triggers some genuine concerns. Edmonton and several other Alberta municipalities are looking at becoming the first centres in Western Canada to allow Internet votes. City staff have recommended council approve online ballots in advance polls for next fall’s municipal election, following what was regarded as a successful mock vote last September that tested such a system with no discernible security breaches. That all-systems-go enthusiasm took a hit last week when a local computer programmer informed council’s executive committee that he was able to cast two ballots in the mock election without being detected.
We have just begun a new year, a new session of Congress and a new term for President Barack Obama. But as we look forward to 2013 and beyond, we cannot forget the lessons learned from the past few years. The 2012 election season saw an abrupt reversal of America’s long tradition of expanding voting access. Voters were alarmed by the fact that more than 41 states had introduced, and in many instances passed, legislation that would make it harder for them to vote. These changes are now well-known — voter ID restrictions, cuts in early voting hours, reduced registration opportunities and executive actions making it harder to restore voting rights. Advocates and experts sounded the alarm — in the media, the courts and elsewhere — to ensure no voter would lose their rights. The result: Far fewer voters were affected by these changes than originally predicted. The voters won. But what now that the 2012 elections are over? Does that mean that the work is done and that problems that were so feared just a few months ago are behind us? On the contrary.
Justice Anthony Kennedy regards himself as a teacher. The main role of the Supreme Court, he has said, is to instruct Americans about the Constitution’s fundamental values so they know what it takes to preserve American democracy. In Shelby County v. Holder, which the Supreme Court will hear this month, he is likely to cast the deciding vote between the conservatives and moderate liberals in a critical choice about the essence of democracy — the right to vote. The case presents a clash between America’s national commitment to racial equality and Alabama’s contention that states have“the constitutional prerogative to regulate their own elections.” In other landmark cases, like a 2003 decision recognizing privacy rights and a 2005 case striking down the death penalty for juveniles, Justice Kennedy voted for fairness. In these instances, he was a moralist, concerned about constitutional values yet willing to balance the importance of court precedents against the weight of the most salient facts. That approach should lead him to the fair result in this case, too.
Republicans aren’t alone in manipulating election rules or drawing districts to favor their candidates, but lately they’ve been in the vanguard. Their latest proposals, to fiddle with presidential vote-tallying, are particularly egregious. Following through on them not only would damage the GOP’s reputation but also could drain all legitimacy from the electoral college system. Virginia Republicans, thankfully, killed such a reform plan Tuesday. Republicans elsewhere should stay away, too. State-level GOP leaders around the country have been considering ways to split up their states’ electoral college votes, and one idea is to do it according to congressional district maps. A presidential candidate who wins a congressional district, say, would win one electoral college vote.
Now that the Election Commission has sent a reference to the Law Ministry with new proposals including compulsory voting, following Supreme Court’s order that steps be taken to legally bind all eligible voters in the country to exercise their right of franchise as early as possible and ensure that the winning candidate bags a true majority vote, time is certainly ripe to have a glance at the 31 countries with compulsory voting systems in place. Countries that have compulsory voting systems are Austria, Argentina, Australia, Belgium, Bolivia, Brazil, Chile, Costa Rica, Cyprus, Dominican Republic, Ecuador, Egypt, Fiji, France (senate only), Gabon, Greece, Guatemala, Honduras, Italy, Liechtenstein, Luxembourg, Mexico, Nauru, Paraguay, Peru, Philippines, Singapore, Switzerland (province of Schaffhausen), Thailand, Turkey and Uruguay. A study of the World Fact Book of the American Central Investigation Agency (CIA) and the July 4, 2005 edition of the prestigious British daily “The Guardian” reveals that of the 31 countries with compulsory voting system, around a dozen nations (and Schaffhausen, a province/canton of Switzerland) actually enforce it.
Editorials: If the court strikes Section 5 of Voting Rights Act | Richard Hasen/The Great Debate (Reuters)
We celebrated Martin Luther King Jr.’s birthday last week in the shadow of a fight over the constitutionality of a key provision of the Voting Rights Act. The Supreme Court will soon hear arguments in Shelby County v. Holder, raising the question whether Section 5 of the act, which requires that states and localities with a history of racial discrimination in voting get permission from the federal government before making any changes in election procedures, is now unconstitutional. The smart money is on the court striking down the law as an improper exercise of congressional power, although Justice Anthony Kennedy or another justice could still surprise. If the court strikes Section 5, the big question is: What comes next? Reuters has invited a number of leading academics, who focus on voting rights and election law, to contribute to a forum on this question. In this introductory piece, I sketch out what may happen and what’s at stake. One possibility is that nothing happens after Section 5 falls and minority voters in covered jurisdictions lose their important bargaining chip. Then, expect to see more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules in the formerly covered jurisdictions.
GOP leaders in Michigan, Wisconsin and Pennsylvania — all blue states with Republican governors — have expressed interest in the electoral changes. But as Bloomberg columnist Albert Hunt writes, “If this sort of political coup had been pulled off earlier, instead of celebrations on the streets of Washington during last week’s presidential inauguration, there would have been violent protests.” Indeed. And African Americans may well have led the fight. This kind of disenfranchisement isn’t new to the black community, and its long, dark history has left too many scars to go unnoticed. Republicans were equally bold in their attempts to undermine minority votes ahead of the 2012 elections. Pennsylvania’s House Republican leader Mike Turzai declared that a voter-ID law would “help Mitt Romney win” — ostensibly by disenfranchising African Americans, college students and the elderly. In Ohio, a senior Republican official fought against extensions to voting hours, writing in an email that such a move would only serve the “urban — read African-American — voter turnout machine.”
Edmonton city council would be wise to exercise real caution before introducing Internet voting into the municipal election system. As tempting as it might be to blaze an electronic trail into the local democratic process, the notion of a vote that’s only a click away triggers some genuine concerns. City staff have recommended council approve online ballots in advance polls for next fall’s municipal election, following what was regarded as a successful mock vote last September that tested such a system with no discernible security breaches. That all-systems-go enthusiasm took a hit Monday when a local computer programmer informed council’s executive committee that he was able to cast two ballots in the mock election without being detected. Coun. Linda Sloan spoke for many citizens, and not just technophobes, when she expressed severe reservations about the integrity of a cyber-vote. “I’m not 100-per-cent confident in the security of the Internet and never have been, whether it’s my credit card information or my personal address or how I choose to vote,” Sloan said.
“The smart money is on the court striking down [Section 5 of the Voting Rights Act] as an improper exercise of congressional power,” Rick Hasen has warned in his introduction to this forum. That bet is a poor one. The “experts” may well be proven wrong ‑ as they were in 2009 when the Supreme Court found no reason to rush into a constitutional judgment on the constitutionality of pre-clearance. “Our usual practice,” Chief Justice John Roberts said then, “is to avoid the unnecessary resolution of constitutional questions.” And that is just what the court did. Today, however, those worried about the future of the Voting Rights Act nervously point to a remark by the chief justice in a 2006 congressional redistricting case. “It is a sordid business,” Roberts said, “this divvying us up by race.” The remark suggested race-driven maps would not survive another review of Section 5’s constitutionality, and yet the enforcement of the pre-clearance provision has long involved race-conscious districting. To forbid “divvying up” is to insist that the Justice Department and the courts craft very different remedies for electoral discrimination than the familiar ones ‑ though a commitment to those race-based districting plans has long been a civil rights litmus test.
Editorials: Delegate the Voting Rights Act oversight formula | Christopher S. Elmendorf/The Great Debate (Reuters)
If the Supreme Court strikes the pre-clearance provisions (Section 5) of the Voting Rights Act, it will most likely do so because the statute’s “coverage formula” is untethered from evidence of current discrimination against racial minorities. The oversight formula determines which states must receive the federal government’s blessing before making any changes to their election laws. It is based on decades-old evidence of discrimination. When Congress in 2006 extended the pre-clearance provisions for another 25 years, legal scholars warned that the extension would be constitutionally vulnerable ‑ unless Congress updated the formula. But politically this was too hot to handle.
Richard Hasen introduces this symposium by asserting the “smart money is on the [U.S. Supreme] court striking down” Section 5 of the Voting Rights Act. But I disagree with his framing. The next Voting Rights Act needs both Section 5 and additional voting rights protections. Unfortunately, Hasen is helping opponents of Section 5. He gives justices allowance to ignore facts and law supporting Section 5, and instead perhaps think: Scholars anticipate our court will invalidate Section 5, so we can invalidate it without seeming too extreme or too political. Section 5, however remains a significant tool in preventing voting discrimination. During the 2012 election, it blocked new hurdles that would have made it harder to vote in Florida, South Carolina and Texas. Hasen himself anticipates more problems if the court invalidates Section 5 – “more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules.” Arguments that Section 5 unfairly targets states subject to its jurisdiction are overblown. Areas without a record of recent discrimination can “bail out” of this oversight. Since 1982, no area seeking a bailout has been turned down.
If the Supreme Court strikes down the Voting Rights Act, many will argue that we should abandon the civil rights model of elections and opt for a national law setting uniform election standards that would protect every voter. I’m all for protecting every voter. But I would hate to lose what Section 5 provides – protections for racial minorities, in particular. The other protections against racial discrimination in voting – most notably, Section 2 of the Voting Rights Act – are too costly and cumbersome to protect racial minorities from the practices that Section 5 now deters. Section 2 works well for high-stakes redistricting battles, where the game is worth the candle. But for the myriad low-level discriminatory practices, no civil rights group has the resources to bring suit every time. We still need what Section 5 provides: a simple, quick and low-cost strategy for protecting minority voters.
Editorials: Making Voting Constitutional: Our governing document creates no right to vote. It’s time it did. | American Prospect
Early last year, when Attorney General Eric Holder took a strong stand against voter-identification laws, he emphasized how much they violate core American ideals. “What we are talking here is a constitutional right,” he said. “This is not a privilege. The right to vote is something that is fundamental to who we are as Americans. We have people who have given their lives—people have sacrificed a great deal in order for people to have the right to vote. It’s what distinguishes the United States from most other countries.” The problem is: Eric Holder is wrong. Unlike citizens in every other advanced democracy—and many other developing ones—Americans don’t have a right to vote. Popular perception notwithstanding, the Constitution provides no explicit guarantee of voting rights. Instead, it outlines a few broad parameters. Article 1, Section 2, stipulates that the House of Representatives “shall be composed of Members chosen every second Year by the People of the several States,” while Article 1, Section 4, reserves the conduct of elections to the states. The Constitution does, however, detail the ways in which groups of people cannot be denied the vote. The 15th Amendment says you can’t prevent African American men from voting. The 19th Amendment says you can’t keep women from voting. Nor can you keep citizens of Washington, D.C., (23rd Amendment) or 18-year-olds (26th Amendment) from exercising the franchise. If you can vote for the most “numerous” branch of your state legislature, then you can also vote for U.S. Senate (17th Amendment).
Editorials: Voter fraud and illegal immigration: a biometric card solution | Robert Pastor/latimes.com
The American people want the Democratic and Republican parties to solve our nation’s problems together, but bipartisan solutions become possible only if each side gives the other the benefit of the doubt. We should begin with two polarizing issues — voter fraud and migration. Biometric identification cards offer a solution for both. More than 30 states require identification cards to vote. Republicans believe such ID cards are important to prevent electoral fraud. Democrats believe voter impersonation is not a problem, and that the real reason for the IDs is to suppress the votes of poor and old people and minorities, who lack cards and tend to vote Democratic. The Supreme Court accepted that voter identification cards were a legitimate instrument for ensuring ballot integrity, but many state courts suspended the laws because they were implemented late with confusing rules and without easy access to cards. In fact, statewide IDs are of little help because most cases of double voting are by people with homes in two states.
Allegations of voter fraud and vote suppression are common, especially among Ohio lawmakers who would use the former to justify the latter. Actual instances of attempts to tamper with voting are rare. A recent directive by Ohio Secretary of State Jon Husted is a welcome effort to separate fact from fiction. Unsubstantiated claims of vote rigging can take on a life of their own. The Internet helps to turn rumor into fact through repetition. A post-election email that went viral is a case in point. One version of the anonymous email claimed that last November, in 21 Wood County districts Republican voting inspectors were illegally removed and President Obama won 100 percent of the votes. The writer also said that more than 106,000 votes were cast in Wood County, even though the county had only 98,213 registered voters. None of it’s true, as a check of the Wood County Board of Elections or Ohio Secretary of State Web sites makes clear. Mr. Obama won a little more than 51 percent of the 63,948 votes cast for president in Wood County. He didn’t win all of the vote in any district.
Editorials: Republican plans for Electoral College reform: Democrats shouldn’t worry about the GOP’s ideas for changing voting rules in Virginia, Wisconsin, or Pennsylvania | Slate Magazine
Sound the alarm! Democrats are on high alert! Josh Marshall calls it a big, big deal. Eric Kleefeld says if the blueprint were in place last November, the GOP would have “stolen 2012 for Mitt Romney.” Steve Benen of the Maddow Blog calls it a “democracy-crushing scheme” showing that “the will of the voters and the consent of the governed are now antiquated concepts that Republicans no longer value.” They’re all talking about potential plans to change the method for electing the president in states like Virginia, Wisconsin, and Pennsylvania—states that have Republican legislatures and governors but voted for Obama in 2012. Instead of awarding all of the state’s Electoral College votes to the presidential candidate getting the most votes in each of these states, under the proposed plans most of the Electoral College votes would be awarded to the winner in each congressional district—and thanks to Republican gerrymandering of those districts, such a scheme would be a windfall for Republicans. This plan would be deeply concerning if Republicans were really going to enact it. But the same self-interest that is leading Republicans to consider this move is also going to lead most of them to abandon it almost everywhere. The Great Democratic Freak-out is unjustified. But it is not without its usefulness, because it reminds wavering Republicans what they will face if they go down the road of unilateral Electoral College reform.
Following another bitter presidential loss, Republicans in several states are pushing for rule changes that would boost their odds in future races — essentially, switching the Electoral College allocation method in Democratic-leaning swing states from the current winner-take-all system to one that would help Republicans capture at least some electoral votes in those battlegrounds. In the short run, of course, such changes would probably help Republicans siphon off electoral votes in states like Virginia, Ohio, Michigan, and Pennsylvania. But these rule changes would also make a mockery of the concept of fair elections, and harm the twin Republican principles of conservativism and federalism. Currently, all but two states award Electoral College votes using a winner-take-all system (called the Unit Rule). The Unit Rule is not mandatory. Other methods have been used in the past, including having the state legislature hand out the electoral votes however it sees fit. Another popular alternative method, one that is currently used by Maine and Nebraska, is giving one electoral vote to the winner of each congressional district.
A fresh breeze of reform is blowing in from the western plains. On Election Day, Montana Attorney General Steve Bullock was one of just three nonincumbent Democrats to win election as either governor or U.S. senator in states that went red in the presidential race. Bullock was inaugurated two weeks before this month’s third anniversary of Citizens United. He had led a fight to try to keep the U.S. Supreme Court decision in that case from negating Montana’s strict campaign finance law in state elections. Also on Election Day, 75 percent of Montana voters, Democrats and Republicans, approved Initiative 166 calling for a Constitutional Amendment to overturn Citizens United and the concept of corporate personhood. Montana was joined that day by Colorado as the first two states to pass public referendums, although nine others, including California, have called for an amendment through resolutions by their legislatures.
A week ago I noted a new Republican push to gerrymander the electoral college to make it almost impossible for Democrats to win the presidency in 2016 and 2020, even if they match or exceed Barack Obama’s vote margin in 2012. Is something like that really possible? Yes, very possible. To review, here’s how it works. The US electoral college system is based on winner take all delegate allocation in all but two states. If you get just one more vote than the other candidate you get all the electoral votes. One way to change the system is go to proportional allocation. That would still give some advantage to the overall winner. But not much. The key to the Republican plan is to do this but only in Democratic leaning swing states — not in any of the states where Republicans win. That means you take away all the advantage Dems win by winning states like Ohio, Pennsylvania, Michigan and so forth. But the Republican plan goes a step further.
On two major occasions – during his election night speech and second inaugural address – President Obama has highlighted the need for election reform. “By the way, we have to fix that,” he said on November 6 about the long lines at the polls in states like Florida. Shortly thereafter, the cause of election reform seemed to fall by the wayside, with more pressing events, such as the Sandy Hook shooting and the fiscal cliff, dominating the news. But Obama returned to the issue on January 21, saying “our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.” Now the question is whether the Obama administration and Congress will actually do something to fix the shameful way US elections are run. There are smart proposals in Congress to address the issue. The most comprehensive among them is the Voter Empowerment Act, reintroduced today by Democratic leaders in the House, including civil rights icon John Lewis, and Kirsten Gillibrand in Senate.
Sen. Richard L. Saslaw got wind Thursday that House Democrats might force a vote on a bill to redraw Senate lines across the state, so he dashed from his chamber to make sure that didn’t happen. Republicans had rammed the measure through the Senate on Monday in a sneak attack that Saslaw had compared to Pearl Harbor. And ever since, the Senate Democratic leader from Fairfax has been quietly pressing House Speaker William J. Howell (R-Stafford) to do away with it, according to legislators and Capitol staffers. Even though they were in close contact, Saslaw was not sure where Howell stood on the bill, which the speaker could kill with a procedural move. And with good reason.
President Barack Obama emphasized the need to modernize the U.S. election system in his Inaugural Address. One bill to do just that is set to be introduced Wednesday by the civil rights hero Representative John Lewis (D-Ga.) — who knows a thing or two about how to expand democracy. Under his reform plan, states would have to take responsibility to make sure that every eligible voter is on the rolls. How? By taking existing computerized voter rolls, and expanding them with names voluntarily collected when citizens deal with government — including the Department of Motor Vehicles for drivers’ licenses, the Social Security Administration or other agencies. Any voter could opt in with the click of a mouse. The proposed bill would bring our antiquated system into the 21st century. The “Voter Empowerment Act,” introduced by Lewis with Rep. Steny Hoyer (D-Md.) and Senator Kirsten Gillibrand (D-N.Y.), could transform the way we choose our leaders.
Whatever his motivations, Gov. Rick Scott deserves praise for his about-face on state election law. Scott said last week that local election supervisors should be allowed to offer as many as 14 days of early voting during the next election and increase the number of voting hours. He signed a bill last year that cut the number of days to eight from 14 and reduced the number of hours. The governor also reversed course by calling for early voting to be allowed to resume on the Sunday before Election Day. Black churches brought voters to the polls on that Sunday — an effort dubbed “souls to the polls” — before the bill signed by Scott ended that effort.
This morning, I wrote on an emerging Republican plan—in swing states won by President Obama—to rig presidential elections by awarding electoral votes to the winner of the most congressional districts. Because Democratic voters tend to cluster in highly-populated urban areas, and Republican voters tend to reside in more sparsely populated regions, this makes land the key variable in elections—to win the majority of a state’s electoral votes, your voters will have to occupy the most geographic space. In addition to disenfranchising voters in dense areas, this would end the principle of “one person, one vote.” If Ohio operated under this scheme, for example, Obama would have received just 22 percent of the electoral votes, despite winning 52 percent of the popular vote in the state. For this reason, I didn’t expect Republicans to go forward with the plan—the risk of blowback is just too high. My skepticism, however, was misplaced. In Virginia, a local news station reports that just this afternoon, a state Senate subcommittee recommended a bill end Virginia’s winner-take-all system and apportion its 13 electoral votes by congressional district.
Jordan’s upcoming parliamentary elections cannot avoid marking the increasing disconnect between palace politics and public discontent. Having weathered two years of increased political unrest and protracted economic crisis, Abdullah continues to project confidence with new elections touted as his hallmark reform. Yet, instead of ushering in a period of openness, the elections will perpetuate the status quo: a closed political space dominated by an absolute monarch. In the short term and long term, this environment magnifies the kingdom’s vulnerabilities and poses an increasingly untenable situation. As tensions heighten and the economy sinks, the elections may tilt the vote towards popular revolt rather than regime reform.