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Voting Law 101: Defending the Right to Vote

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Voting Law 101: Defending the Right to Vote

Voting is the cornerstone of democracy. Yet many states engage in ongoing efforts to suppress exercise of the franchise and have faced a series of responsive lawsuits seeking to protect the right to vote. This program will provide an overview of voting rights, beginning with a brief historical overview of the origins of voter suppression in the U.S. It will consider how election laws impact voters’ ability to register, vote, and have their vote counted, then focus on the primary constitutional and statutory bases for protecting the right to vote. The course will focus on courts’ recent application of constitutional and statutory protections for the right to vote in recent election cycles. It will review recent significant voting rights legal challenges and developments in voting and election law, compare past discriminatory voting restrictions to modern day second-generation barriers to voting, and consider examples of racial discrimination through vote dilution, undue burdens on the right to vote, gerrymandering and felony disenfranchisement. We will end by summarizing strategies to challenge voter suppression through advocacy and litigation.

Transcript

This CLE course is going to look at some of the origins of voter suppression in the United States and how small changes to election laws can impact people's ability to register, vote and have their vote counted. We're going to go briefly through a background on the historical origins of voter suppression, talk about the federal constitutional and statutory protections of the right to vote, look at some recent periods in history in recent history, on how we saw the protection for the right to vote ebb and flow both in the federal and the state courts. And then look at some current challenges underway that will have a significant impact in the upcoming election and future elections for the strength of protection for people's right to vote. Very briefly, I'm going to start in the late 1800s, with the Military Reconstruction Act. The requirement that Southern states who had lost the Civil War, needed to pass new state constitutions to restore giving the right to vote to Black Americans, in order to rejoin the Union. States were also required to ratify the 14th Amendment in order to be readmitted to the reunion. And what we're gonna focus on here is the 14th and 15th Amendment, as the building blocks of voting rights protection, and voting related litigation in present day. The two significant sections of the 14th Amendment first is section one, which covers equal protection and due process. Both provisions are used often to make sure that there's equality in protection for voting rights, whether that's on the basis of race or just confirming that similarly situated voters will be treated the same way, and due process protection, as it relates to voting rights, protects people from losing their right to vote or having their ballot not count, without notification or an opportunity to cure any defect in their ballot. Section two of the 14th Amendment is one of the basis for denying people the right to vote or removing their right to vote due to a felony conviction. And I will talk about that at the end of this program. As far as the 15th Amendment, it's the basis for intentional discrimination claims, which is one of the ways that we challenge some voting restrictions. And it also section two of the 15th Amendment is the authorization for Congress to enforce the 15th Amendment, by way of passage of legislation. It is what authorizes the Voting Rights Act and gave Congress the ability to pass the Voting Rights Act, which again is another one of the significant federal restrictions on voter suppression, or put differently, one of the significant federal protections for the right to vote is the Voting Right Act. We're going to look mostly at modern day barriers to the right to vote. But it's important to understand historically, some of the first generation barriers, and those were things like poll taxes, literacy tests, grandfather clauses. Those first generation barriers to voting were rather explicit in attempting to prevent Black Americans from exercising their right to vote. More recent tools are in fact more subtle. So you have a number of restrictions on the right to vote now that have a racially discriminatory impact, even if they were not passed with the intent to discriminate on the basis of race. It's helpful to keep in mind, as we talk through some of the second generation barriers to voting, that the first generation barriers are in our country's lived experience. So in a case that I worked on in 2014, NAACP v. McCrory, a challenge to an omnibus election bill in North Carolina. One of our plaintiffs, Ms. Rosanell Eaton, she actually recalls when she registered to vote in the South in 1939, and was forced to recite the preamble to the constitution, in attempt to prevent an African American woman from voting. So these explicitly discriminatory devices are in our country's lived history, and more subtle devices to exclude or prevent people from voting, certainly continue to occur to this day. So let's jump in to talk through some of the federal protections that we have for the right to vote, and how voting rights attorneys deploy those federal protections to try to push back against voter suppression that we see at the state level. We just discussed some of the brief background to voting rights in the US, I'm now going to talk through the tools currently used for protecting voting rights. So one of the most important things to keep in mind when we discuss election along voting rights, is that there's a shared state and federal authority to regulate elections. To put it differently, both the federal government and the state government have some authority and responsibility to regulate and administer elections. It's actually article one, section four that says, "The time, place "and manner of holding elections "shall be prescribed in each state by the legislator, "but Congress may at any time by lawmaker "alter such regulations." What we have here is the constitution granting in the first instance to the state, the ability to regulate elections. And election administration is a very localized process in the US. It's done at the state level, sometimes even more granularly at the county or locality level. But the federal government through Congress does have the authority to make changes as well, and to regulate elections as well, if we think through the Voting Rights Act, if we think through the National Voter Registration Act, if we think through other major federal legislation that has affected voting, those are ways in which the federal government also has a hand in protecting the right to vote. A lot of the balance that that we have here, is, like I said earlier, there's a history of states discriminating in election administration, discriminating in voting rights, with a historical basis in state's unwillingness to allow Black Americans to vote on equal terms with White Americans and during the reconstruction time. So a lot of the ways in which the provisions that protect voting rights come into play is a state law is passed that affects voting, or that denies the right to vote or bridges the right to vote. And litigators will often bring a case into federal court to seek federal protection for the right to vote. So what is it that states cannot do? What's prohibited by the constitution and by federal law that states cannot do? The first is violate the 14th Amendment. So we went through a moment ago, the two significant provisions of the 14th Amendment, the equal protection clause and the due process clause. How do these constitutional protections actually function in voting rights litigation? So the first doctrine within the equal protection clause is what we call the Anderson Verdict Balancing Test. So this has a history in the case law that has looked at whether a restriction on the right to vote unduly burdens the fundamental right to vote. Which means that federal courts are often called upon to balance the need for a restriction, and any election administration rule can certainly touch on the right to vote. So federal courts balance the need for a restriction against the impact that it has, the burden that it has on individual's right to vote. The standard for the Anderson verdict balancing test is whether the character and magnitude of a law's impact on voters outweighs the extent to which the burden is necessary for the state to administer elections. It is a sliding scale test, which means that if you have a heavy burden on the right to vote, the court may apply strict scrutiny or intermediate scrutiny, and look much more carefully at what the state's interest is in passing this regulation. Whereas if there's just an incidental burden on the right to vote, a court will apply the rational basis review to a voting restriction. Let me give an example to make this clearer. So voter ID laws gained a lot of focus and attention, particularly in the 2012 and 2014 election cycles. Strict voter ID laws provide a good example of when the Anderson verdict standard might be applied. So for instance, if the state were to pass a very strict ID law saying that the state only accepted in-state current driver's licenses, simply to authenticate somebody's identity. So what's the first question you would ask, if you brought an Anderson verdict challenge to a strict voter ID law? First you would say, how many voters are impacted? For example, how many eligible voters don't have a current in-state photo ID and would be prevented from voting because of this new requirement? Let's say that it burdens a hundred thousand eligible voters, and then you look at the depth of that burden. So if somebody didn't have an ID, what would it take for them to get an ID? Maybe they need transportation to the DMV, maybe they need a $50 fee for a license, maybe they need something else that they're not likely to have access to. So you first establish how many people are affected and to what extent their right to vote will be abridged. And then you look at the state's interest in passing this sort of law. So for example, does the state have a history of people registering to vote using a false identity? We really don't come across that at all in most of our cases. Usually strict ID laws and other laws are a solution in search of a problem seeking to restrict the right to vote without having a basis for needing that sort of restriction. So if you have no history of people using fake identities to vote, and you had a restriction that would burden a hundred thousand people's ability to vote at all, that's an instance where the burden on the right to vote might be undue, given the lack of state interest and an Anderson verdict claim could apply. Another principle that falls under the equal protection clause, is uniformity in election administration. And the key case here is Bush v. Gore itself, the 2000 election case that went to the Supreme Court. And the holding of that case among other things is that states are required to treat substantially similarly situated voters equally. That means that you can't apply different rules and restrictions in elections from county to county or city to city. Voters need to be treated equally across the state, within a state. So the next provision after the equal protection provisions that protect voting, are due process provisions. And we've used the due process clause in a number of cases to argue that you can't remove somebody's right to vote without giving them an opportunity to explain themselves, basically. There's a case that I had in New Hampshire, Saucedo versus Gardner. And there, we had a plaintiff who was 93 years old and legally blind. She voted by absentee ballot, because it was difficult for her to make her way to the polls. She felt very strongly about signing the envelope after she had sealed it, signing the envelope to her vote by mail ballot. And she was disenfranchised in a previous election, because the signature on her vote by mail ballot envelope did not match her registration signature. Now she had difficulty signing the same way twice, because she was legally blind. And we challenged this restriction saying that before you could throw out her vote, before you could decide not to count her ballot, she needed to have an opportunity to be notified of the determination that her signature didn't match, and to cure that shortcoming. So to somehow verify that she was the one who voted that ballot, that this was an authentic ballot, and that it should not be thrown out. And we were successful in that case. So the determination there was that, our client Mrs. Saucedo needed to be given due process of law before her interest in voting could be taken away. Moving on to discrimination on the basis of race and the tools that we have to address racial discrimination and voting directly. One like I said, is the 15th Amendment, which prevents intentional discrimination on the part of state. So we had a case in 2014 in North Carolina where the federal court, actually the appellate court, the fourth circuit determined that the North Carolina legislator had passed a law that with surgical precision, got rid of the voter access provisions that Black voters had used in order to cast their ballot. Meaning there were cuts to the early voting period, there were cuts to out of precinct voting. The state had passed this law that restricted the options for people to register and cast their ballot. And the court's finding was that the State of North Carolina targeted the access points that Black voters used more often than White voters. So in that case, we showed that Black voters usually often disproportionately used the first week of early voting, that's the week that the state legislator had gotten rid of. We showed that Black voters were more likely to vote out of precinct than White voters. The law that we challenged restricted counting out of precinct ballot. We showed that the legislator intentionally carved away at the provisions that allowed increased access for Black voters, and we were successful in showing that the state had intentionally discriminated against those voters. Another important provision that there's a case currently in front of the Supreme Court that talks about it or that we'll talk about it, is section two of the Voting Rights Act. So section two of the Voting Rights Act prohibits any electoral practice that results in the denial or abridgment of the right to vote, results in the denial, or abridgment. What that means, is that you don't only need to show that there was an intent to discriminate, a discriminatory result can in some instances, be prohibited by federal law. This addresses vote dilution, meaning either the use of voting devices like at large elections, or the drawing of district lines, that based on the totality of the circumstances makes the political process less open to participation by members of a protected class, so that those members have less of an opportunity to participate, less of an opportunity to elect their candidates of choice. A quintessential example is a case called Missouri NAACP versus Ferguson Florissant. There we challenged school board elections, which took place at large. And for a number of reasons, Black voters within the school district, although they could have made up the majority in a number of single member districts, did not make up the majority in the district as a whole. And because of that and racially polarized voting the at large election structure, meant that White voters were often able to elect their candidates of choice and prevent Black voters from electing their candidates of choice, diluting their right to vote. So I'll explain that a bit more when I talk about the current redistricting cases that we have going, a matter of fact, one is in front of the Supreme Court. But section two, it's important to remember, prohibits discriminatory results of election restrictions. A couple more. The First Amendment is actually key for protecting voting rights as well. First Amendment we usually think of as protecting speech, it also protects political speech. And there have been a number of decisions that find that parts of the voting process are core political speech. So for example, many people take part in voter registration, non-government entities, go out and just ask their fellow citizens, whether they're registered and would they like to register to vote. Restrictions on voter registration activities have been found, for example, in a case called League of Women Voters v. Browning, a district court in Florida found that restrictions on voter registration, violated the First Amendment, because they restricted citizen's ability to take part in core political speech, by asking their fellow residents, fellow citizens, are you registered? Do you wanna register? And discussing the importance of registration. So that's an example of how the First Amendment can be used to protect the right to vote. The final piece of federal protection for voting rights is the National Voter Registration Act. So this is federal registration that provides a number of different protections. It grants people additional access to register to vote and prevents their removal from the roles under certain circumstances. So if you hear about voter registration roles and updating the roles or cleaning the roles, oftentimes that's where the NVRA is implicated. When can a voter's registration be removed? There are restrictions on whether, when and how they have to be notified before removal. And in addition, the NVRA grants people more access to voter registration at the department of motor vehicles or at social services organizations. Those are the primary tools that we use to protect voting rights. equal protection, due process, 15th Amendment protection against intentional discrimination, section two of the Voting Rights Act and protection against discriminatory results, The First Amendment and the NVRA. It is a very narrow area of law in some ways in that these are the primary types of challenges that we bring, and they address a wide variety of different circumstances. Now, we'll talk through the recent trajectory of voter suppression, primarily starting in 2008. And if you recall, we're comparing here first generation voting barriers, like poll taxes, literacy tests, and grandfather clauses, to what we now think of as second generation barriers. These are the more Subtle restrictions on the right to vote or laws related to election administration that prevent people from exercising their right to vote. And I wanna talk about this in five different periods beginning in 2008. So there's two significant events in 2008 that affected voting rights and the protection for the right to vote. The first is a Supreme Court case called Crawford. That case was a facial challenge to Indiana's strict photo ID requirement. The state of Indiana passed a law that required you to show ID in order to cast your ballot. And it was challenged under the Anderson verdict doctrine, the Anderson verdict doctrine, which we discussed a moment ago asks whether a law unduly restricts the ability to exercise de franchising, and it does so by balancing the character in magnitude of the burden on the right to vote against the state's interest. So here for the first time, the Supreme Court applied the Anderson verdict doctrine to a strict ID law and decided that the state had in fact, sufficiently justified passing this law. Not because there was evidence of some sort of fraud requiring ID, but because even the prospect of voter impersonation or some sort of fraud was enough to justify the imposition of a strict ID law. One of the things the Supreme Court mentioned in the Crawford decision, is voter confidence and how the state can restrict or pass regulations and laws that burden the right to vote, even if they don't address a problem already in existence, if the laws will give voters confidence that elections are safe and secure. In some instances, that's a strong enough state interest to justify the restriction. So this is a very difficult case from the voting rights perspective, because it allows for preemptive restrictions. It allows for restrictions to address a fear, not realized. And of course, in the current political environment, in a way that incentivizes states to create a fear of unsafe elections or unfair elections, and then use that fear that the state itself created to justify passive additional restrictions. That's the Crawford case in 2008. What else happened in 2008? Well, the US elected their first Black president, and the election that resulted in Obama's 2008 presidency was actually more racially diverse than what we've ever seen in this country. The gap in turnout by race was nearly eliminated. And there was a comparatively high turnout, in particular among young voters and first time voters. So we saw the voting electorate really shift in the 2008 election. Shift in terms of racial balance, shift in terms of additional age balance, people were excited to vote in that election, and voted for the first time in order to participate. A lot of the times voter suppression is cyclical. So we see a group gain power, and we see pushback often on the part of states to prevent new shift of power from happening, to put it very generally. So what happened with these two events, the 2008 election, federal election and the Crawford decision? In my view, there was really strong blow back after this young diverse electorate elected president Obama in 2008, and the Supreme Court in a sense in the Crawford decision had authorized greater restrictions on photo ID than what we had seen in the past. And so beginning in 2008, there was really a backlash against a more expansive electorate, in my view. So we saw a number of different new restrictions, many of which were challenged in court. There were cuts to early voting. For example, there was a case in Florida that restricted the time permitted for early voting, that was challenged under section five of the Voting Rights Act, which we'll talk about in a moment. There were registration list purges, comparisons of different federal data sets to remove people from the voter registration roles. Concerns were raised about the accuracy of those lists, including lists of authorizing the people, or including information on people citizenship, which was often not accurate, and other ways in which the state would purge voter registration roles. We saw not only strict photo ID laws. For example, there's a case Frank v. Walker in Wisconsin that had a stringent photo ID law, which disenfranchised a number of people who couldn't afford to pay for the underlying documents like birth certificates, that they needed to get ID. There were documentary proof of citizenship requirements. For example, in Kansas, saw a law that required an additional showing of citizenship before somebody could cast their ballot. There were a number of different restrictions that addressed issues that had never come up before that had not come up. So for example, if you cut early voting, when there's never been any complaint or difficulty about early voting, in fact, it's quite popular with voters and often with election administrators, there would seem to be no reason to make that change in law. But now in light of the Crawford decision, when states could justify changes in election administration on the prospect that there could be a future problem or harm and to expand voter confidence, restrictions that we may not have seen earlier were passed from about 2008 to 2013, and there was a strong backlash there. Okay, so what happened in 2013? A well known decision related to section five of the Voting Rights Act, Shelby County v. Holder. I haven't talked yet about pre-clearance in section five of the Voting Rights Act, but I'll give a brief overview here, just for participants to understand the significance of the 2013 Shelby County v. Holder decision. So section five of the Voting Rights Act, for some covered jurisdictions, required that before a state could implement a policy or procedure that affected voting, they would need to submit that policy or procedure,, either to the department of justice or to the DC, district court for pre-clearance. Meaning that before a law could be implemented, the DC federal court or DOJ, would have to determine that it was not retrogressive, that it did not harm racial minority voters. So this strong protection for voting rights did a few different things. First of all, the state would have to alert the federal government, if there was a new law passed, affecting voting. A lot of things, otherwise minor changes in polling place or other election administration rules, can fly under the radar now, but at the time the state would have to alert the federal government. And before a law came into effect that the department of justice would have to determine it was not retrogressive. In Shelby County v. Holder, the Supreme Court, Robert trading for the court decided that while they recognized voting discrimination still exists, that the coverage formula deciding which areas of the country were bound by section five pre-clearance requirements, and which were not, that coverage formula was unconstitutional, because coverage was based on data and assumptions from 1965 that the Supreme Court determined was no longer valid. So we used to have pre-clearance. It allowed legal concerns to be addressed before law went into effect, and the coverage formula is held unconstitutional. There's a great dissent by Justice Ginsburg that says, "Throwing out pre-clearance when it has worked "and is continuing to work, "to stop discriminatory changes, "is like throwing away your umbrella in a rainstorm, "because you're not getting wet." So the Shelby County decision did away with a strong protection for voting rights and protection from racial discrimination in terms of voting in 2013. Again, in 2013, we saw another wave of voter suppression, really take hold. So provisions in Texas strict photo ID laws, in Florida and a number of other places, provisions that the department of justice had blocked as retrogressive, had refused to pre-clear, suddenly the state tried again to, or in fact did pass these retrogressive laws. Now that section five was basically rendered inoperative. And what do we have left in the aftermath of Shelby County? So I think there's a few things to keep in mind as we're thinking about 2013 until the president. First of all, I think in the early wave post Shelby County, some states just went too far, that, for example, the League of Women Voters in North Carolina v. McCrory case that I mentioned earlier, where there was a finding of intentional discrimination in the state's cuts to early voting, out of precinct voting. Those sorts of unnecessary cuts at voting access courts pushed back against very quickly. So that was in 2014, in the aftermath of Shelby County. So some states really went too far, intentionally discriminating, and courts certainly found in some instances that despite the lack of pre-clearance requirements, obviously intentional discrimination was still not permitted. We saw some pushback from the courts, but we also saw less protection under federal law for voting rights. And so when we think about the last few election cycles, some of the primary devices to protect voting rights have been section two of the Voting Rights Act, have been some of the equal protection provisions that I discussed earlier, but have really required affirmative litigation to push back against restrictive legislation. And of course, federal litigation takes a long time. So at this point in time, when the state passes a law, oftentimes you're unable to challenge that law and get to a federal court decision in time for upcoming elections. In essence, states sometimes get a free pass for unconstitutional or invalid laws, if they're not successfully challenged quickly enough, so that a court's decision is in place before an election. Now I'd like to run through some current issues in voting rights. And one of the main issues, following the Shelby County decision, which really took the impact away from section five of the Voting Rights Act protection. One of the main questions now is how will section two of the Voting Rights Act be applied? And as I mentioned earlier, section two of the Voting Rights Act, prohibits any electoral practice that results in a denial or abridgment of the right to vote on account of race or color. Results in to, so we're not only looking at intentionally discriminatory laws, we're not only looking at laws that mentioned race on their face, we're talking about laws that have a result or an impact that's discriminatory. What you ask with this section two claim is whether based on the totality of the circumstances, whether the political process is equally open to participation by members of a protected racial group, and whether they have less opportunity to participate in the political process and to elect representatives of choice. So discrimination that's covered by section two, primarily takes two forms, vote denial, and vote dilution. Vote denial is for example, a device that hinders somebody's ability to cast their ballot. Something like voter ID laws, cuts to early voting, other provisions like that. So there was a recent Supreme Court case Brnovich v. DNC, that applied section two to vote denial claims, and the outcome was not great for voting rights practitioners. There, the DNC challenged restrictions on out of precinct voting and ballot collection practices. And this challenge was based on section two of the Voting Rights Act. The out of precinct voting means you don't go to your home precinct, the one that's closest to your house usually, and that's assigned to you, you go for a different precinct. And people usually like to have that option, whether it's because they're unable to locate their assigned precincts, or for example, if they wanna vote immediately after work at a polling place near their office, as opposed to near their home. The court in regard to out of precinct voting, even though it was used more by Native American voters and Black voters, and was restricted by the law that was being challenged. The court held that locating one's polling place is a normal, valid cost of voting, meaning that it can be restricted, this was not an undue burden on voting. The number of people that used out of precinct voting was relatively small, and that the state had an interest in predicting the geography, the geographical distribution of where people went to cast their ballot. The other provision that was challenged in this case was ballot collection. And this means oftentimes when people vote by mail, they may not be able, or they may not be able to easily return their own ballot, if it means either bringing it into an election administrator's office, if they're not as mobile, if they don't have transportation access or for any other reason, oftentimes people are unable to return their own ballot. So what some neighbors, community members organizations will do, is collect ballots to return them together. So this ballot, there was a prohibition on ballot collection in most circumstances, and that's what was challenged in the Brnovich case. With regard to ballot collection, the court held that there was not a significant burden in returning ballots, despite the fact that Native American communities who were the group had issue in this case really had disparities in their access to the mail system. Difficulty accessing a post office, disproportionate lack of access to transportation. And they were a community positively affected by ballot collection and return. Despite these disparities, the court found that the state had a compelling interest in preventing fraud, and that the state in fact need not wait for some sort of fraud to occur, before they pass these preventative measures such as prohibiting ballot collection. Now, this brings us back to the Crawford case from 2008 that I mentioned earlier, which allowed states to restrict a solution in search of a problem, is how I like to think of it. They allowed states to restrict the right to vote, to restrict access to the franchise, to address issues that had never come up or had not yet come up, and to do so in order to increase voter confidence or to prevent fraud and other problems before they happen. So the ballot collection prohibition was permitted, by the court in the Brnovich case. But more significant, or as significant as the specific decision in that case, was the new standard applied to section two or applied to vote denial claims under section two of the Voting Rights Act. And what the court said in Brnovich is that you look to five factors when you assess the burden on voters, to make a determination under section two of the Voting Rights Act. You look at whether there was a burden imposed by the law that is more than the usual burden of voting. So in this case, they're locating, the court's determined locating manual polling place was a common burden of voting, it was not something so outrageous as to be a violation of federal law. That's factor one. You look to the degree to which the law departs from common voting practices in 1982. There's not a ton of justification from looking back to elections in 1982, there were a lot of different circumstances in 1982, and the basis for that factor is at best, slightly unclear. You look at the size of the racial disparity resulting from the law. You look at whether the state offers other options for casting a ballot, and you consider the strength of the state's interest. So aside from this nods 1982, which in my opinion makes little sense. We have a new list of factors that the court will look at when it applies section two to vote denial claims. That case will make it difficult to challenge vote denial claims, under section two of the Voting Rights Act in some instances. But part two, there's an upcoming case Milligan v. Merrill, now it's Merrill v.Milligan, an Alabama redistricting case that is currently in front of the Supreme Court, it will be heard in October the upcoming term. That case relates to vote dilution. So there we're looking at redistricting, and whether the district lines, in this case, congressional district lines in Alabama will dilute the strength of Black voters voting rights. Turning now to the application of section two, in the context of vote dilution, we have a case called Merrill v. Milligan, and this is a redistricting case challenging the congressional districts drawn in Alabama, the ACLU the NAACP Legal Defense Fund and Hogan Lovells filed a lawsuit back in November on behalf of Black voters, that challenged Alabama's newly drawn congressional districts. What we claimed in that lawsuit, as is relevant to what's in front of the Supreme Court right now, is the claim that Alabama's congressional redistricting maps, deny Black residents, equal opportunity to participate in the political process. Basically what we say here is that the map as drawn does not give Black voters an equal opportunity to elect their candidates of choice to Congress. The map that we challenged only has one majority Black district, district seven, even though Black people comprise about 27% of Alabama's population. And historically there's only been one Black majority district, out of the seven electoral districts in Alabama, the congressional districts in Alabama. So here Black voters are only able to elect 14% of the candidates to Congress in that state, even though they make up 27% of the population, and it is possible complying with all other redistricting requirements to draw maps, where Black voters would have the ability to elect candidates of choice in two, instead of one district. In this case, the plaintiffs went to federal court, a three judge court for an injunction, so that the map that was passed in Alabama could not be used in the 2022 election. Redistricting cases with constitutional claims... And this included not only a Voting Rights Act, but also a constitutional claim. Go before three judge courts. The court that looked at this case included one 11th circuit judge, and two district court judges. The three judge court was made up of two of the judges were appointed by President Trump to the bench, the other judge, I believe, was appointed by Reagan and elevated by Clinton. So this was not a particularly liberal bench for this case. But in any event that the three judge court determined that section two was violated, that plaintiffs had satisfied the requirements to show that Black voters votes would be diluted based on the maps as drawn. The standard there... Well, we may want to cut this to my editors, because this is a bit lengthy. But the standard there requires the court to look at what we call the three Gingles pre-condition. So first plaintiffs have to show that it's possible to draw a majority Black district, or an additional majority Black district. That's called the first Gingles precondition. That you have to show that complying with other redistricting principles, it's possible to draw a map where Black voters would be a majority in an additional district. You then show that there's racially polarized voting, that people tend to vote for different candidates in the locality based on their race, and that historically or at least in recent elections, White voters voted as a block, which prevented Black voters from being able to elect their candidates of choice. So those are the three Gingles preconditions. The court then looks to the totality of the circumstances to see if the lines as drawn or an electoral device, like at large elections, dilutes the equal voting strength of Black voters. That might be more detail than we want to include here to my editors, so we may wanna cut that out. Anyway, so the federal court in Alabama determined that the congressional map as passed, prevented Black voters from having an equal ability to elect their candidates of choice. In a preliminary injunction the state of Alabama moved for a stay to the Supreme Court and the Supreme Court five to four, decided to stay that decision and noted probable jurisdiction. So the election in 2022 will go forward under the maps as passed, despite the district court's finding that these laws violate section two of the Voting Rights Act, and the Supreme Court will hear this matter in October, and we will either hear the approval of the current standard for section two, the Gingles standard that I just mentioned, or we could hear the court come out with a different interpretation of what section two of the Voting Rights Act requires in the context of vote dilution and redistricting. I'm going to quickly run through in our last 10 minutes, two additional topics in voting rights, and that's partisan gerrymandering and felony disenfranchisement. We won't go into great detail, but it's important to be aware of these two topics, and what's involved and the state of the law. Redistricting is an important topic right now because every 10 years, the federal government counts all people in the US and redraws congressional district lines, and a number of oftentimes other state and local lines based on the new population determination. District lines are sometimes drawn by independent state commissions, but more often than not, they're drawn by state legislatures. So there's often an incentive for a state legislator to give themselves as an incumbent or their party, an advantage in how district lines are drawn. That's called partisan gerrymandering. Partisan gerrymandering can have a deep impact on electoral outcomes for at least a decade, but it can be difficult to challenge because of a 2019 case called Rucho v. Common Cause. So first of all, what do we mean by partisan gerrymandering? Or what are some of the tools of partisan gerrymandering? One we refer to as cracking, where you divide individuals of the same political party into more than one district to dilute their power. So let's say you have a... You need to draw up two districts, you have a 55%... So partisan gerrymandering. Let's say you have a statewide population where approximately 45% of the voters vote Democrat, 55% of the voters vote Republican. Political geography, being what it is, which is oftentimes clusters of residents or clusters of areas by party, you would most likely get some seats going Democrat, some seats going Republican. If you were to gerrymander a state that was 45% Democrat, 55% Republican, what if you were able to draw every single one of the congressional districts so that they were 55% Republican voters, 45% democratic voters? The outcome would be that every single congressional district would be held by a Republican representative, despite the fact that 45% of the state tended to vote Democrat. So partisan gerrymandering results in an extreme imbalance when it comes to voters preferences statewide and the vote seat ratio, or the party of elected representatives in the seat statewide. There was a challenge in 2019 or decision in 2019 in Rucho v. Common Cause, a case out of North Carolina, where the Supreme Court decided that partisan gerrymandering is a non justiciable political question. So basically the plaintiffs came to the court and eventually went to the Supreme Court to challenge partisan gerrymandering. They offered a number of different standards, like dis-proportionality or non-competitive elections, or other ways for determining whether partisan gerrymandering was so extreme as to be unconstitutional. And the court decided, no, this is not the type of case that a federal court can decide, this is a political question, and it should be left to the states in the political branch, in the first instance, since state legislators are often the ones drawing district lines, but this decision in 2019 didn't rule out the prospect that state courts could also make determinations about partisan gerrymandering. So we were in a sad place in 2019, where federal courts could not look at partisan gerrymandering claims, but what we've seen in this election cycle is an effort to bring partisan gerrymandering claims to state courts. And I'll give a quick example, before we move on to felony to some franchisement. We have two active cases in Ohio that are partisan gerrymandering challenges. So, Ohio passed a state constitutional amendment in the last cycle that prohibited partisan gerrymandering. So in the last election, Ohio passed one state constitutional amendment that applied to both general assembly, the state legislator district lines, and to congressional district lines. When it comes to the state legislative district lines, the Ohio state constitution now requires that the statewide proportion of districts whose voters favor each political party shall correspond closely to the statewide preferences of the voters of Ohio. So in the example I just gave, in fact, it is an example of Ohio, if 45% of the voters tend to vote Democrat and 55 tend vote Republican, the Ohio state constitution now says, the number of seats that are likely to go Democrat must closely correspond to the vote share of statewide, and likewise for Republican, obviously. That applies to the state legislative district lines. When it comes to the congressional district lines, the Ohio state constitution directs that the state shall not pass a plan that unduly favors or disfavors a political party, or it's incumbent. So unduly favors or disfavors a political party, or it's incumbent. Basically this directs that state legislators cannot without justification draw lines that favor their own political party. So we have here very strong state constitutional protections against partisan gerrymandering, and the ability to bring these claims to the state court since the Rucho v. Common Cause decision, is a decision related to federal court jurisdiction and federal court cases. So there is still hope for preventing partisan gerrymandering. Both cases were initially successful in Ohio. There's now been impact litigation related to the 2022 election, and the congressional case is ongoing, but there is still protection against partisan gerrymandering. And we will see in this redistricting cycle, whether there are additional challenges brought to challenge partisan advantage in district line drawing. Onto our last and final topic for today, which is felony disenfranchisement and rights restoration. And this is certainly a last but not least, because I don't think that we can talk about the electoral process and the democratic process in the US without talking about who's excluded. In this case, we have approximately 5.2 million people, 5.2 million US citizens who are excluded from the democratic process, who are unable to register and vote because of a prior conviction. And these over 5 million people include one in 16 black American adults. So one in 16 black citizens in the US is disenfranchised. It's about more than three and a half times greater than the disenfranchisement rates of non-Black US citizens. So there are severe racial disparities in felony disenfranchisement. The disenfranchisement rates have increased significantly as incarceration rates have increased between about the 1980s and 2010. The number of people disenfranchised went from about 1.2 million to 5.2 million over that time period. And it has been very difficult to address felony disenfranchisement and rights restoration through the courts. But I will describe some of the background on challenges to felony disenfranchisement. So when we talk about felony disenfranchisement, that refers to a citizen losing their eligibility to vote due to a criminal conviction. Most states disenfranchise only for a felony conviction, some for all felonies, some for a specific subset of felonies, a few states disenfranchised for some misdemeanors, oftentimes when it relates to fraud or dishonesty, and there are two states, mainly in Vermont, along with now the district of Columbia that do not disenfranchise at all for a conviction. When we talk about voting rights restoration, that's the process by which people regain their right to vote, after the right to vote has been taken away due to a conviction. So I'd like to just quickly talk through three cases related to felony disfranchisement. The first is Richardson v. Rodriguez. In that case the Supreme Court interpreted how to apply equal protection to folks who had lost their right to vote because of a felony conviction. The determination there was what we discussed earlier that section two of the 14th Amendment that relates mostly to apportionment, but exempts people from protection for participation in rebellion or other crimes. So the Supreme Court asked in Richardson, whether the same degree of protection was available for folks with a felony conviction when it comes to voting, or whether their commission of other crimes exempted them from the usual equal protection that anyone else would be granted when it came to the right to vote. And what the court decided there was that the section two exemption of people who had committed a crime did limit the application of section one of the 14th Amendment. So those who had committed a crime and lost their right to vote, were an exception to the usual equal protection provisions that applied to voting rights. Basically there would not be strict scrutiny when it came to felony disenfranchisement. And that 1974 decision has made it extremely difficult to challenge felony disenfranchisement regimes, since that time. Difficult but not impossible. So there's another 1985 case out of Alabama, Hunter v. Underwood. And that was a challenge to the 1901 Alabama constitution, which disenfranchised people for a number of specified crimes involving moral turpitude. There, when it came to misdemeanors, plaintiffs alleged that the provision was intentionally racially discriminatory. And the Supreme Court looked at this intentional discrimination case in light of the 14th Amendment section two, exemption, or different treatment of people who had committed a crime. And this case came out differently than the Richardson case. So in Hunter v. Underwood, the case said, we are confident that section two was not designed to permit the purposeful racial discrimination, attending the enactment and operations of state law, which otherwise violates section one of the 14th Amendments, nothing in Richardson suggests to the contrary. So we have this push and pull where the court in Richardson says, "Oh, there's not a normal "strict scrutiny level of protection "for violations of the right to vote "or for denial of the right to vote." And then in Hunter v. Underwood, the court says, "Okay, but wait a minute. "It can't be that section two of the 14th Amendment "blesses intentional racial discrimination." And so there is a limit on the denial of people's right to vote because of a conviction, or at least the reasons for ways in which people's right to vote is denied. There are a number of different cases, which we don't have time to talk through today, but I'm going to record another CLE specific one to felony disenfranchisement. But there's a number of different cases that look at either the application of the equal protection clause or the application of section two of the Voting Rights Act in the context of felony disenfranchisement. There's one more case I'd like to mention from two years ago, the Jones v. DeSantis case, which went to the 11th circuit in 2020. There, the state of Florida passed a state... Florida was one of the primary discriminators when it came to felony disenfranchisement. So Florida itself had about 1.4 million people who were disenfranchised because of a conviction. It has very high over criminalization and over incarceration rates. And it had lifetime disenfranchisement of everybody with a felony conviction, unless they were granted rights restoration through the clemency board. So tremendous number of people in Florida were disenfranchised. In 2018, the citizens of Florida initiated and passed a constitutional amendment by about 64% of the votes. And for those familiar with electoral outcomes in Florida, rarely do things happen by 64% of the vote. But they passed a provisioned restoring voting rights to approximately 1.2 million of the people with a prior conviction. They restored voting rights at completion of sentence, and did so automatically without the requirement of going through the committee process. The following year in June of 2019, the Florida state legislator passed a bill significantly narrowing the restoration amendment by requiring that... Or by defining completion of sentence, to include payment of all legal financial obligations. Legal financial obligations, or LFOs are costs and fees that are often assigned to an individual who's convicted of a crime. They can range from $500 to, if they include restitution thousands, tens, or hundreds of thousands of dollars. And the state legislator in Florida determined that those obligations would need to be paid before somebody could have their right restored. So essentially this maintained the disenfranchisement of all of the Florida citizens who could not afford to pay their LFOs. We brought a challenge to this law the day that it was signed, and a district court did determine that this provision discriminated on the basis of wealth, sort of a different line of cases than what we've discussed this hour. And it constituted a poll tax. That decision was stayed, and eventually overturned by the en banc 11th circuit, but it does provide an interesting look at the modern devices for discriminating against a group of voters like those with a conviction and discriminating against, or preventing poor people from casting their ballot. We are out of time for today. And I hope some of you will join for the felony disenfranchisement CLE. Thank you very much.

Presenter(s)

Julie Ebenstein
Senior Staff Attorney
American Civil Liberties Union, Voting Rights Project

Credit information

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