for naming my new paper, The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, as the Abstract of the Week.
James Taranto (WSJ): “A left-liberal outfit called the Constitutional Accountability Center wants the U.S. Supreme Court to sustain a section of the 1965 Voting Rights Act, but its argument is based on little more than an appeal to emotion–specifically, on nostalgia for the heroism of the civil rights movement half a century ago.”
Media Matters: “Taranto, who cites a map and the Supreme Court brief for the Alabama county challenging the constitutionality of the VRA, focuses solely on the obituary to accuse CAC of not discussing the Constitution more in their tribute to Guyot. Yet Taranto fails to mention the extensive legal analyses and legal briefs CAC has written on the constitutionality of the VRA, all easily accessible on their website, as well as in other news outlets.”
As chairwoman of the House Administration Committee, [Rep, Candice] Miller has jurisdiction over the federal election process, which is currently being tested by disparate state voter registration laws that many say were written to curb minority turnout and others claim are a magnet for voter fraud.
She said that ensuring free and fair elections will be one of her top priorities in her new role.
“My past record and experience as chief elections officer during my time as Michigan’s secretary of state will assist me in accomplishing the many challenges set before us and ensuring that we effectively lead in the area of elections as that is the foundation for our democracy,” Miller said in a statement.
This evening’s federal court decision upholding Nevada’s ban on same sex marriages against constitutional challenge came from Chief Judge Robert C. Jones of the United States District Court for the District of Nevada. As Sam Bagenstos notes, this is the same judge who recently decided a controversial case regarding Nevada’s “none of the above” election law. Judge Jones in that case was not only reversed by the Ninth Circuit—he was smacked down in a concurring opinion by Judge Reinhardt (who also happens to be the author of the Ninth Circuit Prop. 8 decision striking down California’s anti-SSM ban). And after Chief Judge Jones was smacked down, he smacked back at Judge Reinhardt in a statement accusing Judge Reinhardt of improper conduct in contacting his chambers.
Get out the popcorn as this new case goes forward.
In 2000, some scholars predicted the Supreme Court’s controversial equal protection holding in Bush v. Gore that the state could not arbitrarily value one person’s vote over that of another might be used to force states to improve their election processes through litigation. In the ensuing years, Bush v. Gore had not fulfilled that promise. Scholars debated when, if ever, the case could apply beyond the narrow facts of a statewide recount with inconsistent counting standards, but the courts seemed uninterested: the Supreme Court has failed to cite the case for any proposition, and the few lower courts which relied upon the case as precedent to create better and fairer voting conditions were overturned or limited. By 2007 I lamented the “untimely death” of Bush v. Gore.
A funny thing happened during 2012. The voting wars which had ensued since 2000 manifested themselves in a host of restrictive election rule changes passed in the name of fraud prevention and administrative convenience mostly by Republican legislatures and implemented by Republican election administrators. Democrats, the Department of Justice, and reform groups resisted the overreach, litigating over many of these changes. The results of this litigation was a mixed bag. For example, courts approved some voter identification laws, rejected others, and put Pennsylvania’s and Wisconsin’s laws on hold for this election season but perhaps not beyond that. Overall, it appeared that in the most egregious cases of partisan overreach, courts were serving, often with surprising unanimity, as a judicial backstop.
In Ohio, one of the twin epicenters (along with Florida) of the 2012 voting wars, two important cases relied in part on Bush v. Gore to expand voting rights. In one case, a conservative panel of the United States Court of Appeals for the Sixth Circuit—a court which had shown itself bitterly divided along party and ideological lines on election issues in 2008—unanimously held that Ohio’s disenfranchisement of voters for voting in the wrong polling location because of poll worker error violated the equal protection clause. In the other case, another Sixth Circuit panel held that Ohio’s contraction of the early voting period to exclude the weekend before the election, for all voters except certain military voters, violated the equal protection clause under Bush v. Gore. The court so held despite the fact that Ohio provided 23 days of early voting and for the first time sent all Ohio voters a no-excuse absentee ballot application. This latter ruling was at best a major stretch of Bush v. Gore and existing precedent.
The story of the 2012 voting wars is a story of Republican legislative and to some extent administrative overreach to contract voting rights, followed by a judicial and public backlash. The public backlash was somewhat expected—Democrats predictably made “voter suppression” a key talking point of the campaign. The judicial backlash, and the resurrection of Bush v. Gore in the Sixth Circuit, was not. The judicial reaction, from liberal and conservative judges and often on a unanimous basis, suggests that courts may now be more willing to act as backstops to prevent egregious cutbacks in voting rights and perhaps to do even more to assure greater equality and fairness in voting. However, it is possible that this trend will reverse in future elections.
That’s the lead story in this week’s Electionline Weekly.
Janai Nelson has posted this draft on SSRN (forhcoming, Boston College Law Review). Here is the abstract:
For nearly 50 years, the Voting Rights Act of 1965 and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. However, modern vote denial practices that have a disparate impact on minority political participation increasingly fall outside the Act‘s ambit. As judicial tolerance of disparate impact claims has waned in other areas of law, the contours of Section 2, arguably the Act‘s most powerful provision, have also narrowed to fit the shifting landscape. Section 2‘s “on account of race” standard to determine discrimination in voting has evolved from one of quasi-intent determined by a totality of the circumstances, to a short-lived intent requirement, followed by an enhanced disparate impact analysis, culminating in a more recent standard that simulates proximate cause. This Article proposes a test for Section 2 vote denial claims that comports with the narrowing construction of disparate impact claims and reclaims the robust contextual analysis that the Voting Rights Act contemplates. The “causal context” test proposed here is anchored to the “core values” of Section 2 mined from the legislative history of the Act, particularly the “Senate factors.” The causal context analysis relies on proof of explicit or implicit bias, as well as circumstances internal and external to elections that give rise to disparate vote denial, without requiring proof of intent. This approach is historically consistent with the Act‘s totality of the circumstances test and cognizant of courts‘ increasing demands for proof of a causal link within disparate impact jurisprudence. Moreover, the proposed causal context analysis is consonant with recent federal proceedings evaluating the racially disparate impact of voter ID laws, voter purges, early voting restrictions, and other forms of modern vote denial.
Michael Pal has posted this draft on SSRN (forthcoming, Queens Law Journal). Here is the abstract:
Recent experiments with deliberative democracy in British Columbia and Ontario have brought new life to the debate over electoral reform in Canada and have called into question the roles of the judiciary and the legislature on electoral law. In both provinces, Citizens’ Assemblies composed of randomly selected members were tasked with deliberating on electoral reform and brining their recommendations to the electorate in a subsequent referendum. These Assemblies were lauded as innovative alternatives to the conventional legislative decision-making process. The author examines the potential and the limitations of the Assemblies, by situating the Citizens’ Assembly mode within roader discussions bout the law of democracy. Specifically, the article explores how well the Assemblies in British Columbia and Ontario insulated electoral reform from manipulation by elected representatives. Although he concludes that those Assemblies were less successful at keeping politics out of the process than many have suggested, he argues that the model nevertheless makes a valuable contribution to the ongoing debate between structural theory and rights theory regarding election law and the right to vote. In light of the fact that both sides of the debate are dissatisfied with the Supreme Court of Canada’s section 3 jurisprudence, there are good reasons for both structural theorists and rights theorists to support the continued use of Citizens’ Assemblies on issues of electoral reform. The author concludes by offering recommendations for improving the Citizens’ Assembly process in the future.
The latest from NH.