Category Archives: Voting Rights Act

“LDF Releases Report Detailing Voter Suppression in 2020 Election Season”

Release:

Today, the NAACP Legal Defense and Educational Fund, Inc. (LDF) released its highly anticipated Democracy Defended report, which documents and analyzes election-related activities undertaken by LDF during the 2020 election season, provides documentation of barriers faced by Black voters in target states for LDF’s Prepared to Vote (PTV) and Voting Rights Defender (VRD) projects, and offers solutions for policy makers, election administrators, and community members to ensure fair access to the vote across the nation.

“It is a mistake for people to assume that because an election produced a reliable result that it ran smoothly,” explained LDF Associate Director-Counsel Janai Nelson. “Our work during the 2020 elections revealed that failures at the state and federal levels to ensure fair, safe, and easy access to the ballot caused significant burdens for Black voters and other voters of color, as well as people living with disabilities. 

“Further, this report shows how the Supreme Court’s decision in Shelby County v. Holder— which took away crucial protections of the Voting Rights Act of 1965 to safeguard against discriminatory voting legislation — has allowed burdensome policies and intimidation tactics to spread and multiply across the country. Additionally, Democracy Defended makes clear why relying on non-profit organizations, community organizers, and individual volunteers and voters to save our democracy is not sustainable. The burden to act rests on our elected leaders at every level, but especially Congress.

“The markers of a successful election are the ability of all voters to have unencumbered access to the ballot box and to have those votes counted. This is not the democracy we have today. Time is of the essence to stop the wave of voter suppression laws and the intimidation of voters and election officials. Until these attacks are put to an end by government officials, our democracy will continue to be in peril.”

On the state level, all states must:

Enact voting laws that ensure the franchise is available to every citizen.

Facilitate voter participation in elections by offering the widest range of options, including online and same-day registration, vote-by-mail, and early voting.

Repeal discriminatory voting laws that adversely impact the ability of people of color to register and to vote.

Utilize available federal funding to improve election administration procedures.

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Why Governing is Also a Path to Restoring Our Democracy

Senator Klobuchar summarized the Build Back Better plan on Twitter, “Millions of good-paying jobs. New roads and bridges. Broadband access for everyone. Lower costs for childcare, elder care, and community college. We’re going to get this bill to the President’s desk. That’s how we build back better.” She might have added, “This is also how we build back faith in American democracy.”

Passing government programs that address the needs of everyday Americans is itself an important part of the process of restoring both faith in our democratic institutions and functionality to our democratic processes. The basic lesson of the so-called policy feedback literature is that the choices we make in how we govern the economy, health, and education can either reverse or reinforce inequities in civic and political capacity. 

As Pete Buttigieg remarked awhile back, “a lot of the mistrust in our country right now is the result of policy failure. And that policy failure is largely about a generation of intentional disinvestment in the things that we share and need together.” He is right.  Policymaking has second-order effects on citizens’ attitudes about, and relations to, democracy—effects that can either instill civic and political engagement or breed endemic apathy. The specific direction of the policy feedback depends not only on the generosity and universality of those policies, but also on their visibility and the efficiency of their implementation.

Laws regulating election procedures are not the only, or even the most important, influences on enhancing political participation, fostering political capacity, or restoring faith in our democratic institutions. A government that gets things done for its people, and broadcasts clearly when it has done so, is another. Thus, while today’s announcement that a group of Democratic Senators, including Amy Klobuchar, have a new, paired down voting rights bill is promising, we should all note that the Build Back Better plan is itself a “democracy-reform” package—an opportunity to demonstrate policy responsiveness and an important step toward restoring faith in our democratic institutions.

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“Revised Democratic voting bill drops controversial provisions, tweaks others as pressure for action mounts”

WaPo:

A group of Democratic senators — including key centrist Joe Manchin III of West Virginia — introduced a pared-down voting rights, campaign finance and government ethics bill Tuesday in hopes of building momentum for its passage through a closely divided Senate.

The new Freedom to Vote Act retains significant portions of the For the People Act, Democrats’ marquee voting legislation that passed the House this year but was blocked by a Republican filibuster in June. Those include mandating national minimum standards for early voting and vote-by-mail, establishing Election Day as a national holiday, and creating new disclosure requirements for “dark money” groups that are not now required to disclose their donors.

But it also discards significant pieces and tweaks others, largely in an effort to placate Manchin and indulge his hopes of building enough Republican support to pass the bill. Overcoming a filibuster absent a rules change would require the support of 10 Republicans in addition to the 50 members of the Democratic caucus….

While the original bill mandated that states use nonpartisan commissions to draw congressional district lines in order to prevent gerrymandering, the revised bill does not require commissions. It instead creates federal criteria for mapmaking, gives courts the power to enforce them, and allows states to choose how to comply, whether by using a commission or another method.

The Freedom to Vote Act does not include one controversial proposal that Manchin floated in June — a national voter identification mandate. Instead, the bill would create a national standard for the states that choose to require voter ID, allowing them to accept a range of documents as proof of identification, without requiring it in other states.

The new legislation also adds provisions meant to override state-level efforts in GOP-controlled states that some are warning could allow officials to override election results. Sections aimed at so-called election subversion would create federal protections for elections officials and create standards for the handing of election equipment and records.

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“Senate Democrats near agreement on new voting rights legislation”

NBC News:

Senate Democrats are close to an agreement on updated voting rights legislation that can get the support of all 50 Democrats, three Democratic aides familiar with negotiations tell NBC.

The forthcoming agreement comes after the For the People Act and the John Lewis Voting Rights Advancement Act were introduced in Congress in 2019 and 2021, respectively. Since their introductions, both pieces of legislation have been voted on along party lines.

The member-level discussions are complete, one source says, but the staff is currently going through the legislative text to fix any technical issues. No further details have been shared yet.

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“Gingles Unraveled: Hispanic Voting Cohesion in South Florida”

Nicholas Warren has posted this draft on SSRN (forthcoming, North Carolina Civil Rights Law Review). Here is the abstract:

The Voting Rights Act protects the ability of racial and language minority groups to elect candidates of choice by prohibiting states and localities from diluting those groups’ votes when drawing electoral districts. The Fair Districts provisions of the Florida Constitution include a similar ban on vote dilution, plus further protections against diminishing (retrogressing) existing minority voting strength. A key element of proving vote dilution or retrogression is that the minority group votes cohesively. Historically, minority voting cohesion has often been uncontested or easily proven in VRA suits. But in South Florida, Hispanic citizens are voting less cohesively than they used to.

This Article investigates the legal issues that arise when the assumption of cohesion unravels. First, this Article investigates to what extent the Hispanic community in South Florida is cohesive. It then proposes several alternative approaches to the vote dilution and retrogression framework to better align doctrine with the real-world conditions of voters and communities.

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“Fair elections and a strong economy: Both are at risk”

Robert Rubin and Sam Issacharoff oped:

President Bidenspeaking in Philadelphia last month, warned of nefarious efforts afoot to undermine voting rights, calling them the “most significant test of our democracy since the Civil War.” But while much attention has gone to voter suppression laws in states like Texas, too few are focusing on norm-shattering changes to the way elections are administered in this country — and the profound consequences they could have for our democracy and our economy.

In the last six months alone, more than 400 bills have been introduced in 49 states that would, under the guise of combating fraud, give state legislatures unprecedented and ominous powers over how elections are administered, votes counted and results certified. A spurious, partisan declaration of fraud might someday soon be enough to overpower democratic outcomes.

These efforts not only threaten our democracy, they threaten to shake the foundations of our market-based economic system. One of the great strengths of the American economy is the rule of law. When domestic and foreign businesses invest in the United States — helping to create jobs — or when investors buy U.S. Treasuries — helping to fund the government programs on which Americans depend — they are relying on this bedrock. Everything from business confidence to the dollar’s status as the world’s reserve currency depends on the rule of law. Its degradation could therefore fundamentally affect the way our economy functions, and the economic outlook for the years and decades ahead.

Whereas democratic best practices would leave election mechanics to independent civil servants, voting oversight in the U.S. has largely been political, albeit bipartisan. In practice, this has worked just fine: So long as each of the two major parties could stand vigilant over the other, a commitment to electoral competition, repeat play and basic values of popular sovereignty has kept temptations to cheat at bay. 

Now, that long-standing balance is in jeopardy….

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“The Jolt: Raffensperger accuses DOJ of conspiring with voting groups, nonprofits”

AJC:

Secretary of State Brad Raffensperger is trying to use open records laws to find political motivations behind the DOJ’s lawsuit over Georgia’s voting law.l

Raffensperger filed a Freedom of Information Act request with the U.S. Department of Justice Tuesday seeking any communications, if they exist, between the Department and dozens of his legal and political opponents, the AJC’s Mark Niesse tells us. The request names Stacey Abrams, Fair Fight Action, Black Voters Matter Trust Fund, the 6th District of the African Methodist Episcopal Church and a variety of attorneys and organizations.

Also on the list: the League of Women Voters of Georgia, Latino Community Fund Georgia, Delta Sigma Theta Sorority, Inc., the politically active Black sorority. Many of the groups named in Raffensperger’s request spoke out against Senate Bill 202 when it passed earlier this year.

Even if there were no communications between the Department and the groups, Raffensperger said that would mean the Department of Justice is biased against Georgia. Some Democrat-controlled states have similar voter ID requirements, and they provide fewer early voting opportunities, but they aren’t being sued, he said.

“Either way it’s troublesome because if they came up with this on their own, it means the DOJ has become politicized,” Raffensperger said in an interview. “We want to know who’s pulling their strings, and if they are.”

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“How a Defunct Federal Provision Helped Pave the Way for New Voting Restrictions”

NYT:

Georgia toughened identification requirements for absentee voting. Arizona authorized removing voters from the rolls if they do not cast a ballot at least once every two years. Florida and Georgia cut back sharply the use of drop boxes for mail-in ballots.

All of these new voting restrictions would have been rejected or at least softened if a federal civil rights protection from the 1960s were still intact, experts in election law said.

For decades, the heart of the landmark Voting Rights Act of 1965 was a practice known as preclearance, largely detailed under Section 5 of the statute. It forced states with a history of racial discrimination to seek approval from the Department of Justice before enacting new voting laws. Through preclearance, thousands of proposed voting changes were blocked by Justice Department lawyers in both Democratic and Republican administrations.

In 2013, however, Section 5 was hollowed out by the Supreme Court, as Chief Justice John G. Roberts Jr. wrote in a majority opinion that racial discrimination in voting no longer constituted a significant threat.

As Republican-led state legislatures have tightened voting rules after the 2020 election, new restrictions have been enacted or proposed in four states that are no longer required to seek approval before changing voting laws: Georgia, Arizona, Texas and Florida. Those new restrictions would almost certainly have been halted, stalled or altered had Section 5 still been in use, according to interviews with former federal prosecutors and a review by The New York Times of past civil rights actions by the Justice Department.

“There’s nothing subtle about what they’re trying to do,” said Tom Perez, the former head of the Justice Department’s civil rights division and a former chairman of the Democratic National Committee. “If Section 5 were still around, those laws would not see the light of day.”

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“Election Laws Disproportionately Disadvantaging Racial Minorities, and the Futility of Trying to Solve Today’s Problems with Yesterday’s Never Very Good Tools”

Gary Simson has posted this draft on SSRN (Emory Law Journal). Here is the abstract:

In the final weeks leading up to the 2020 national election, scarcely a day seemed to pass without news of a challenge to, or court decision on, a state election law that, though race-neutral on its face, was likely to disproportionately disadvantage racial minorities. Sadly, state legislative activities since the election have offered little reason to believe that election laws disproportionately disadvantaging racial minorities are apt to become a thing of the past anytime soon. The number and variety of election laws disproportionately disadvantaging racial minorities have been on the rise for decades, and challenges to those laws on equal protection and other grounds have rarely been successful.

Much of the credit—or, more accurately, blame—for the challengers’ distinct lack of success in seeking to invalidate such laws under the Equal Protection Clause goes to an approach to disproportionate racial impact that the U.S. Supreme Court developed in three decisions in the mid-to-late 1970s. Although that approach has significance for many areas of law besides election law, election law may well hold the dubious distinction of being the area of law in which the approach has done the most damage.

After synthesizing the basic components of the Court’s approach, this Article discusses their practical implications in order to establish that the Court’s approach assigns little constitutional importance to disproportionate racial impact. The Article then argues that the Court’s assignment of little constitutional importance to disproportionate racial impact is at odds with the most basic understanding of the Fourteenth Amendment’s history as well as equal protection theory. After proposing an alternative approach under the Equal Protection Clause to disproportionate racial impact, the Article applies it to election laws disproportionately disadvantaging racial minorities. The Article concludes with some observations about the immediate and long-term importance of its proposed rethinking of equal protection constraints.

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“House Passes a Voting Rights Bill, but a G.O.P. Blockade Awaits in the Senate”

NYT:

The House voted on Tuesday to restore federal oversight of state election laws under the 1965 Voting Rights Act and expand its reach, as Democrats moved to strengthen a crowning legislative achievement of the civil rights era amid a renewed national fight over access to the ballot box.

The legislation, named after Representative John Lewis of Georgia, the civil rights icon who died last year, is a linchpin of the party’s strategy to combat voting restrictions in Republican-led states. It would reverse two Supreme Court rulings that gutted the statute, reviving the power of the Justice Department to bar some discriminatory election changes from taking effect and easing the path to challenge others in court.

Up against urgent deadlines before next year’s midterm elections, Democrats votedalong party lines to adopt the bill 219 to 212 in a rare August session, just days after it was introduced. But stiff Republican opposition awaits in the Senate, where a likely filibuster threatens to sink it before it can reach President Biden’s desk.

That outcome is becoming familiar this summer, as Democrats on Capitol Hill try to use their party’s control of Congress and the White House to lock in watershed election changes — only to be blocked by their Republican counterparts. In the meantime, more than a dozen G.O.P.-led states have already enacted more than 30 laws this year making it harder to vote.

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“Racial Disparities in Voting Wait Times: Evidence from Smartphone Data” (“residents of entirely-black neighborhoods waited 29% longer to vote and were 74% more likely to spend more than 30 minutes at their polling place”)

New draft paper from M. Keith Chen, Kareem Haggag, Devin G. Pope, and Ryne Rohla. Abstract:

Equal access to voting is a core feature of democratic government. Using data from hundreds of thousands of smartphone users, we quantify a racial disparity in voting wait times across a nationwide sample of polling places during the 2016 U.S. presidential election. Relative to entirely-white neighborhoods, residents of entirely-black neighborhoods waited 29% longer to vote and were 74% more likely to spend more than 30 minutes at their polling place. This disparity holds when comparing predominantly white and black polling places within the same states and counties, and survives numerous robustness and placebo tests. We shed light on the mechanism for these results and discuss how geospatial data can be an effective tool to both measure and monitor these disparities going forward.

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“Racial Turnout Gap Grew in Jurisdictions Previously Covered by the Voting Rights Act”

Brennan Center analysis:

While in 2012, just before the Shelby County decision, the white-Black turnout gap was shrinking in the states we analyzed, and in many instances even briefly closed, this trend has reversed in the years since. In 2012, seven out of the eight states had Black voter turnout higher than that of white voters. In 2020, the reverse is true — in only one of the eight states was Black turnout higher than white turnout.

In a few states, this reversal is especially alarming. Louisiana, South Carolina, and Texas had higher turnout gaps in 2020 than at any point in the past 24 years. South Carolina’s white-Black turnout gap widened the most, expanding by a staggering 20.9 percentage points within the eight years since Shelby County. While Black turnout exceeded white turnout in 2012, white turnout was more than 15 percentage points higher than Black turnout in 2020.

 similar trend can be seen in the gap between white voters and all nonwhite voters. The total white-nonwhite turnout gap has grown since 2012 in all of the eight states likely to be covered under the VRAA. There is sufficient data to conclude that the gap has increased for Blacks, Hispanics, and Asians in Florida, Georgia, North Carolina, South Carolina, and Texas. In Alabama, Louisiana, and Mississippi, the sample sizes in the available 2020 census data are too small for Hispanic and Asian voters to make much of a difference in an overall white-nonwhite turnout gap estimation that is distinct from the white-Black turnout gap in those states. Notably, North Carolina went from having a larger share of nonwhite voters represented in 2012 with a white-nonwhite gap of -9.3 percentage points to having a gap of 5.4 percentage points, a jump of 14.7 percentage points, far greater than the national average of 4.6 percentage points.

Overall, we see that the growth in the racial turnout gaps between 2012 and 2020 were even starker in the states likely to be subject to preclearance under the VRAA than those seen nationwide. Seven out of the eight states had white-nonwhite turnout gaps that grew more than the national rate of 4.6 percentage points between 2012 and 2020.  And in four out of the eight states to be subject to preclearance under the VRAA, the white-Black turnout gap grew more than the national rate of 10.3 percentage points from 2012 to 2020.

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