I agree that it is a big day for voting rights advocates. This language of Justice Kavanaugh, however, concerns me. . .
“JUSTICE THOMAS notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44–45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time. “
All posts by Spencer Overton
Election Deniers Didn’t Win Big, but Continue to Threaten Multiracial Democracy
While election denialism was a winning strategy in many Republican primaries, it was a mixed bag last night in many contests for key state-level offices that play some role in overseeing elections.
Key projected winners included Florida Governor Ron DeSantis and attorney general candidates in Florida and Ohio. Election deniers suffered projected losses in races for governor in Michigan, Pennsylvania, and Wisconsin, and secretary of state in Michigan and Minnesota.
The verdict is still out on the election-denier candidates for Arizona governor and secretary of state, and Nevada secretary of state. Arizona secretary of state candidate Mark Finchem has said he wouldn’t have certified Arizona’s 2020 results favoring Biden, and if Finchem wins this year he could refuse to certify 2024 results showing most Arizona voters prefer a Democratic presidential candidate. We also don’t know how many election deniers successfully won races for local offices that oversee elections.
Even if most of these election deniers lose, however, challenges still exist. Election denialism was not simply an empty talking point to secure a Trump endorsement – it remains a potent force within the Republican base. Nearly 200 federal or statewide candidates who questioned the results of the 2020 election won – largely in Republican areas. Over the next two years expect to see Republican politicians (election deniers and non-election deniers) continue to try to shape the electorate by using unsubstantiated claims of fraud to justify new laws to restrict voter registration, vote-by-mail, and early voting, as well as allow for partisan interference in elections.
While I’ve grappled with those who have raised unsubstantiated concerns about fraud to justify unnecessary restrictions on voting for years, this moment is different.
Our nation is becoming more diverse. Cultural anxiety is prompting some Americans to question the legitimacy of our democracy. As Harvard sociologist Theda Skocpol says, “Stop the Steal’ is a metaphor…. It is a metaphor for the country being taken away from the people who think they should rightfully be setting the tone.” Online platforms magnify false claims about election fraud so they become more mainstream. Today’s U.S. Supreme Court seems unlikely to give relief by requiring evidence of fraud to justify unnecessary voting restrictions, preventing political gerrymandering and other election rules that facilitate entrenchment, or acknowledging the original intent and values of the 15th Amendment.
The morning after the 2022 mid-term elections, election denialism continues to pose a significant threat to the future of multiracial democracy. Unfortunately, our existing institutions were not originally designed to facilitate a healthy, well-functioning multiracial democracy. We need transformative solutions to overcome these challenges and create an electoral system that provides diverse communities incentives to engage with each other, create new coalitions, and work together to solve our most pressing problems.
Remembering Lani Guinier
As Rick posted yesterday, our colleague Lani Guinier has passed.
Lani was a voting rights scholar. She was the first Black woman to serve as a tenured faculty member at Harvard Law School. Her commitment to truth and ideas made her a political target in Washington, DC. The significance of her visionary work has stood the test of time, particularly in this moment when the future of American multiracial democracy seems so tenuous.
When Bill Clinton nominated Lani to lead the Civil Rights Division of the Justice Department in 1993, some Republicans dubbed her a “quota queen” due to her scholarship. This was an untrue, unfair, racialized, and gendered label, and illustrated the worst in elected officials practicing “politricks” rather than seriously engaging with ideas. Indeed, Lani’s proposal of cumulative voting was race-neutral and more inclusive of voters from communities of all political backgrounds (including conservative and rural voters) than the status quo (here’s a short essay from Lani explaining that “cumulative voting is more inclusive than winner-take-all-race conscious districting”). Cumulative voting has been used in various localities in several states (e.g., AL, IL, SD, TX) and in shareholder elections at companies like Hewlett-Packard, Sears, and Walgreens.
Rather than defend Lani and use the moment to educate the public about democracy, moderate Democrats backed away and President Clinton withdrew her nomination. It would be another 28 years before the first Black woman would be nominated and confirmed to lead the Civil Rights Division at DOJ-Kristen Clarke.
Lani, however, was so much more than this deliberative failure of our republic, and represented an amazing combination of traits. She was super smart, prolific, creative, and substantive. She was respectful and engaging while also strong and principled. She was committed to empowering community voices and listening to and lifting up others rather than self-promotion.
You can find Lani’s life chronicled in the New York Times, the Boston Globe, CNN, and many other outlets, and statements honoring her life from LDF’s Sherrilyn Ifill, NAACP’s Derrick Johnson, FairVote’s Rob Richie, and many others.
Personally, I benefited from Lani’s generosity when I was a fellow working to become a law professor. She allowed me to teach sessions of her voting rights class at Harvard Law School, and she read drafts of my scholarship and provided insightful feedback. She also consistently told me to smile more!
Throughout my career as a professor and in leading the Joint Center for Political and Economic Studies, Lani was always available, supportive, honest, and wonderful.
We were both fortunate to have served as clerks for Judge Damon J. Keith, and I know that there’s great sadness throughout our entire family of Keith clerks and administrators.
Lani was an outstanding mentor and model to me and to many others, and her guidance shapes my work and life to this day.
We will miss her.
“Jan. 6 attack on multiracial democracy requires Senate to protect freedom to vote”
My latest in The Hill:
“Last year’s assault on the U.S. Capitol is not over. While our nation grows more diverse each day, the attack on multiracial democracy continues today through schemes to suppress votes across the nation. . . .Right now, the most urgent priority is for the U.S. Senate to pass federal legislation protecting the freedom to vote. . . .”
Empower Small Donors: Allow Coordination From Only a Contributor’s First $200
As Rick Hasen noted, Paul Blumenthal reports for HuffPo that some in the U.S. Senate are attempting to completely eliminate the limits on coordinated spending by political parties on candidate campaigns.
This is a problem because it would give political parties, federal elected officials, and federal candidates even greater incentives to focus on the few megadonors who can afford to give a single contribution of over $33,000 to a political party committee, and to pay less attention to millions of average Americans.
Instead, the law should be revised to allow unlimited coordinated spending by a party on candidate elections, but only with money that comes from the first $200 an individual contributes to the party per year.
This proposal would allow parties to get more money to swing, contested elections, which party leaders would say are being decided by money from SuperPACs and other outside forces. In 2008, the six federal party committees raised four times the amount from small donors than they spent on coordinated expenditures. A relaxed coordination rule for the first $200 contributed would increase the party’s ability to target this money most effectively to support particular candidates in key races.
At the same time, the proposal would increase the importance of average Americans in the political process. Both Republican and Democratic party committees would have much greater incentives to focus on obtaining contributions from working and middle-class Americans, since this money could be targeted in a coordinated fashion with contested races.
The proposal would not be limited to contributions of $200 or less, but would apply to the first $200 contributed by each individual. Thus, megadonors would be less likely to successfully claim the law “discriminates” against them (a possibility with the current Supreme Court after an Arizona public financing case). Recognizing, however, that there are many more people who can afford to give $200 (which could be a recurring monthly gift of just over $16) or less, parties and federal officials would have greater incentives to reach out and engage the smaller donors. In other words, it is much easier to raise $2 million in coordinated funds for a contested race from 10,000 smaller donors than from 10,000 megadonors. Further, because only the first $200 of an individual’s contributions could be coordinated, the proposal would not allow megadonors to funnel money through the party to circumvent the lower candidate contribution limits.
I talk about this idea in my Georgetown Law Journal article “The Participation Interest,” and Michael Malbin develops a version of it here.
Voter Suppression is Wrong
Today, J. Christian Adams @ElectionLawCtr tweeted the following: “‘If there was justice in the world they’d be suppressing white people’ says @jointcenter staffer. What says @donnabrazile @SpencerOverton?” He elaborated on the tweet in a blog post.
The Daily Beast attributed that statement to David Bositis, who is not a Joint Center staffer, and has not worked at the Joint Center for over a year.
Voter suppression against any racial group is a serious matter, and it is wrong. Our democracy should work to facilitate participation by Americans of all backgrounds.
For the most recent report published by the Joint Center on race in politics, please read 50 Years of the Voting Rights Act: The State of Race in Politics. The report is critical to understanding the impact of the Act and the future of voting rights. The report provides data on minority voter turnout, racially polarized voting, policy outcomes by race, and the number of minority elected officials from 1965 until the present. Click here to read the 2-page summary and the full 46-page report.
Voting Discrimination Differs from Election Administration Challenges
Earlier today, Heritage Sr. Legal Fellow John Malcolm and I had a lively discussion on the Voting Rights Amendment Act and the Presidential Commission on Election Administration’s recommendations on NPR’s Tell Me More. You can listen here.
My take in a nutshell–voting discrimination and election administration challenges are different problems that require different solutions. Republicans and Democrats in Congress should work together to prevent voting discrimination by passing the Voting Rights Amendment Act, and officials in the approximately 8000 state and local jurisdictions that administer American elections should review and implement many of the election administration recommendations proposed by the Presidential Commission.
Watch Presidential Commission at GW Now
Right now, the Commission is here at GW Law, discussing their report in detail for the first time. Watch live video of event on C-Span 2 by clicking here!
At GW Today: Briefing by Presidential Commission Co-Chairs
Moments ago, the Presidential Commission on Election Administration released its report, which is here. We’ve already got thoughts from Rick Hasen, Heather Gerken, and Rick Pildes.
At 2:30 pm ET today, immediately after meeting with President Obama, the co-chairs of the Commission and several commissioners will come to GW Law.
In their first extensive discussion after releasing the report, co-chairs Robert Bauer and Benjamin Ginsberg will provide a briefing on the report and the process, including an extensive opportunity for questions from election experts, the press, and other audience members.
We have only a few spots left. If you would like to attend, click this link and RSVP immediately. If you cannot attend, watch live video of event by clicking here.
Overton HuffPo on Voting Rights Act bill
I expand on my thoughts from earlier today in my new piece on the front page of the Huffington Post, “A Bipartisan Voting Rights Act is Possible.” Some excerpts . . .
Conventional wisdom among some liberals, conservatives, and moderates is that a “polarized Congress” will never update the Voting Rights Act. . .
While the new bill would require that fewer states preclear changes, the new bill expands nationwide some of the functions served by preclearance.
For example, before the Court’s decision, preclearance deterred discrimination in covered states because bad actors knew their voting changes would be reviewed. The new bill attempts to deter bad activity by requiring that states and localities nationwide provide public notice of particular election changes (I discussed this in my Harvard Law Review Forum essay “Voting Rights Disclosure“). . . .
Despite the naysayers, a bipartisan Voting Rights Act update is possible.
Some dismiss Congress as too polarized to pass a Voting Rights Act. All past renewals of the Voting Rights Act were signed into law by a Republican president, however, including the 2006 renewal.
Others believe that instead of preventing discrimination, an updated Voting Rights Act should explicitly prohibit restrictive state photo ID requirements and other rules that many Republicans favor. This move, however, would only fuel partisan divisions.
No doubt, anti-civil rights ideologues will try to fuel polarization and undermine the Voting Rights Act by framing it as a partisan Democratic effort (which it is not). Despite the fact that Republican opposition to the bill would stimulate minority voter turnout and backlash in the 2014 midterm elections, a few conservative extremists may try to scare Republicans away from supporting the bill by threatening them with labels (e.g., “RINO”).
Some liberals may use similar rhetoric from the other side (e.g., “sellout”) because the new preclearance coverage formula does not include states like Alabama and treats ID differently than other election changes in certain limited circumstances. These concessions, however, may be necessary to satisfy the states’ rights concerns of the Roberts Supreme Court and the political concerns of Republican members of Congress.
I recognize that today was just the first step, and that passage is not guaranteed. I also recognize that the bill is far from perfect.
The bill, however, is an important first step, and it includes measures that are real building blocks for an approach that protects voters. Further, introduction of the bill rebuts the rhetoric of pundits who claimed, without any evidence, that the update was “stalled.” It is far from naive or foolhardy to recognize that this Congress could update the Voting Rights Act.
The full piece is here.
What the New Voting Rights Act Bill Means
The proposed legislation (Berman summary here, bill text here) is just a first draft, but it shows that a bipartisan Voting Rights Act is possible. In a nutshell, here’s what it means . . . .
Recent Discrimination: The new bill responds to the Supreme Court’s Shelby County opinion by tying preclearance to recent instances of discrimination (both with the new coverage formula and enhanced bail-in).
Deterrence: Pre-Shelby preclearance deterred bad activity in all or parts of 15 states because politicians knew their voting changes would be reviewed. The new bill will deter bad activity by requiring that states and localities nationwide provide notice of election changes.
Preventing Harm to Voters: Preclearance stops unfair election rules before they are used in an election and harm voters. The new bill attempts to stop unfair election rules before they harm voters by making it easier to obtain a preliminary injunction to block unfair rules.
Bipartisan Voting Rights Act is Possible
I appreciate the opportunity to contribute to Rick’s blog, but I disagree with his skepticism about the Voting Rights Act update.
My take is that Republicans and Democrats can come together to update the Voting Rights Act. Rick and some others assume Congress is too polarized. Anti-civil rights ideological fringes try to fuel this polarization by painting the update as a partisan issue.
The fact, however, is that both Republicans and Democrats oppose voting discrimination. Updating the Act can happen. I’m not saying an update is guaranteed. Consistent skepticism without concrete information is unwarranted, however, and only undermines the prospect of protecting voting rights.
I will continue to follow this closely throughout the day.
Subsidizing Democracy on C-Span 2
As Rick mentioned in an earlier post, this morning at 9:30 am ET Professor Michael Miller is talking on his public financing book “Subsidizing Democracy” at the New America Foundation, and I’ll comment along with Michael Malbin and Matt Heinz (Mark Schmitt is the moderator).
The book is an important empirical contribution (Miller’s data shows that public financing results in participating candidates spending less time fundraising, voters being more likely to vote in down-ballot races, and Republican candidates being less likely to accept public financing and more likely to face a challenger).
The book, however, focuses largely on systems that provide public financing grants to candidates that were hampered by the U.S. Supreme Court’s invalidation of the trigger provision in Arizona Free Enterprise, and has only a few pages on systems that provide a multiple match of donations (e.g., NYC’s 6-to-1 match which makes a $100 contribution worth $700 to the candidate). For me, increasing incentives for candidates to engage citizens (broaden participation) is more important than limiting spending or increasing the pool of new candidates. I also think public financing should be accompanied by “insurance policies” in the form of Small Donor PACs and increased coordinated spending limits by parties when using money from small donors (or the first $200 of any contribution), so that if future politicians balance budgets by cutting public financing, revenue-neutral laws remain that incentivize small donor engagement.
A summary of the panel is here, C-Span 2 is covering it live (watch here), and my Minnesota Law Review article on public financing (“Matching Political Contributions”) is here.
Professors of Color on Political Law
Many scholars, conference organizers, and reporters who focus on our increasingly diverse democracy want to ensure their reading, citations, panels, and quotations reflect diverse perspectives. We’ve created a new tool to help.
Professors of Color on Political Law features abstracts and links to full articles by law professors of color. You can also pull articles on a single topic (e.g., redistricting). Initial participants include: Steven Bender, Henry Chambers, Guy-Uriel Charles, Gabriel “Jack” Chin, Kareem Crayton, Gilda Daniels, Atiba Ellis, Luis Fuentes-Rohwer, Michael Kang, Janai Nelson, Spencer Overton, Bertrall Ross, Terry Smith, Daniel Tokaji, Franita Tolson, and Ciara Torres-Spelliscy. Thanks!