Category Archives: Elections

A Dream Undone: Inside the 50-year campaign to roll back the Voting Rights Act

Source: Jim Rutenberg, New York Times Magazine, July 29, 2015

This article is the first in a series examining the ongoing effort to roll back the protections of the Voting Rights Act….

….In the decades that followed, Frye and hundreds of other new black legislators built on the promise of the Voting Rights Act, not just easing access to the ballot but finding ways to actively encourage voting, with new state laws allowing people to register at the Department of Motor Vehicles and public-assistance offices; to register and vote on the same day; to have ballots count even when filed in the wrong precinct; to vote by mail; and, perhaps most significant, to vote weeks before Election Day. All of those advances were protected by the Voting Rights Act, and they helped black registration increase steadily. In 2008, for the first time, black turnout was nearly equal to white turnout, and Barack Obama was elected the nation’s first black president.

Since then, however, the legal trend has abruptly reversed. In 2010, Republicans flipped control of 11 state legislatures and, raising the specter of voter fraud, began undoing much of the work of Frye and subsequent generations of state legislators. They rolled back early voting, eliminated same-day registration, disqualified ballots filed outside home precincts and created new demands for photo ID at polling places. In 2013, the Supreme Court, in the case of Shelby County v. Holder, directly countermanded the Section 5 authority of the Justice Department to dispute any of these changes in the states Section 5 covered. Chief Justice John Roberts Jr., writing for the majority, declared that the Voting Rights Act had done its job, and it was time to move on. Republican state legislators proceeded with a new round of even more restrictive voting laws.

All of these seemingly sudden changes were a result of a little-known part of the American civil rights story. It involves a largely Republican countermovement of ideologues and partisan operatives who, from the moment the Voting Rights Act became law, methodically set out to undercut or dismantle its most important requirements. The story of that decades-long battle over the iconic law’s tenets and effects has rarely been told, but in July many of its veteran warriors met in a North Carolina courthouse to argue the legality of a new state voting law that the Brennan Center for Justice at the New York University Law School has called one of the “most restrictive since the Jim Crow era.” The decision, which is expected later this year, could determine whether the civil rights movement’s signature achievement is still justified 50 years after its signing, or if the movement itself is finished….

Scott Walker’s Real Legacy

Source: Donald F. Kettl, Washington Monthly, Vol. 47 nos. 6/7/8, June/July/August 2015

What did the Wisconsin governor’s union busting actually accomplish for the “hardworking taxpayers” of his state? And what do his actions tell us about how he might govern as president? …..

….But let’s presume he does become the nominee. Walker’s triumph over the unions could continue to be a useful tool for him, not only in firing up the GOP base but also in reaching out to independents, 47 percent of whom take a dim view of unions, according to the same Pew poll, and even to persuadable Democrats. The 2016 elections will be a battle over the role of government in failing to spur a too-weak economy and boost stagnant incomes. The Democratic nominee will likely present herself (or, less likely, himself) as a champion of the middle class who will wrest control of government away from the big banks and other powerful corporate interests and use it to benefit average Americans. Walker will be armed with an equivalent reform narrative. The problem with government, he can say, is not just that it is too big, holds back private-sector growth, and robs us of our freedoms—the standard Republican view, which he tirelessly proclaims—but that it has been captured by its own employees, who run it for their own benefit, not the public’s. Just as he took on the unions in Wisconsin, he can say, so will he take on the bureaucrats in Washington, returning power back to “the hardworking taxpayers.”

So it’s worth looking carefully at Walker’s arguments for why he busted the state’s public employee unions. To what extent were those unions the obstacle to getting the state’s fiscal house in order—a key argument Walker made during the 2011 standoff? To what degree do state and local government employee unions drive government’s costs up and push its performance down?

Even more important is the question of how Walker’s experiences and management choices at the state level might translate at the federal level. Is a governor whose greatest accomplishment is the crushing of state and local government unions the right person to lead the government in Washington?….

….To what extent, then, did Walker’s crushing of the unions help Wisconsin’s “hardworking taxpayers”? The $3 billion he saved in his first term was certainly something. But that amounted to less than 1 percent of overall state and local government spending over that time period. Those savings came from the pockets of teachers and other public servants who are also taxpayers and whose compensation, by most measures, was not out of line. The law Walker signed didn’t contribute to the fiscal health of the state’s public pension fund. It provided management flexibilities that could ease school reforms down the road but that the governor himself hasn’t taken much advantage of. And, as we’ve seen, Walker could have won most or all of that $3 billion through tough negotiating without going for the jugular and virtually eliminating collective bargaining. Why, then, did he do it?

It’s tempting to portray the struggle over Wisconsin’s unions as a matter of high policy. In reality, however, it was the culmination of decades of increasingly fierce partisan wrangling that pitched the state’s Democrats, along with their union supporters, against resurgent Republicans and their allies in the business community…..

The Average Joe’s Proviso

Source: Stanley B. Greenberg, Washington Monthly, Vol. 47 nos. 6/7/8, June/July/August 2015

Surprising numbers of white working class voters will support the Democratic agenda-if Democrats promise to reform the government that would carry it out. …

….Yet the white working-class and downscale voters in our surveys do support major parts of a progressive, activist agenda, particularly when a Democratic candidate boldly attacks the role of money and special interests dominating government and aggressively promotes reforms to ensure that average citizens get both their say and their money’s worth. These findings came out of innovative research conducted in partnership with Page Gardner’s Women’s Voices Women Vote Action Fund and David Donnelly’s Every Voice.

In recent years, too many Democrats have presumed that the white working class is out of the party’s reach and that talk of reforming government and the political process simply does not move voters. My contention is that both of those presumptions are wrong. An agenda of reform is the key to Democrats winning the greater share of white working-class and unmarried women votes that will give the party the majorities it needs to govern…..

Quick and Dirty: The New Misreading of the Voting Rights Act

Source: Justin Levitt Loyola-LA Legal Studies Paper No. 2015-24, March 20, 2015

From the abstract:
The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and poised to once again take center stage at the Supreme Court this Term. The Court has agreed to hear a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the litigation posture of the case may not make it clear to the Court, Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act — substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands.

This short and timely Essay is the first to identify the ways in which multiple jurisdictions in this redistricting cycle appear to have substituted this cartoon of the Voting Rights Act for the real thing. It identifies the racial essentialism at the heart of the demographic shorthand, and contrasts that retrograde approach with the tailored and nuanced law on the books. It then elaborates the constitutional danger of replacing the real statute with the imagined one, and urges courts, including the Supreme Court, to see the cartoon for what it is.

A Price Too High: Efficiencies, Voter Suppression, and the Redefining of Citizenship

Source: Atiba R. Ellis, Southwestern University Law Review, Vol. 43, 2014

From the abstract:
This essay argues that the efficiency assumption in election law coupled with a resurgent preference for state-focused election administration has come to dominate considerations of the right to vote. Analysis of right-to-vote questions tends to turn around a calculus that puts at its center the efficiency of a state-dominated election system is the core interest the Court seeks to protect. This stands in contrast to a focus on the rights and status of the individual voter, especially where an individual voter confronts a voting regulation that fails to expressly deny that person the right to vote. In this sense, as is the case in a substantial amount of modern jurisprudence, this efficiency approach has overtaken the modern debates over election regulation.

This essay explores this issue by tracing the development of voting rights jurisprudence from a laissez-faire position of virtually unfettered deference to state control of the vote to a voter-centric rights-based framework, to a balancing approach that champions the states’ interest in efficiency coupled with the reemergence of deference to state power in regulating voting rights. This essay will then turn to examine whether this doctrinal development is appropriate to the modern rights-related issues concerning voting rights. Ultimately, this essay concludes how this new focus on efficiency is ultimately damaging to the right to vote as it fails to fully encompass how voters are ultimately excluded from the process due to the indirect costs placed on voters as an added mechanism of dissuasion from casting one’s ballot.

The Meme of Voter Fraud

Source: Atiba R. Ellis, Catholic University Law Review, Vol. 63 No. 4, 2014

From the abstract:
The idea that the political system is subject to rampant and invisible voter fraud has animated recent debates over the regulation of elections. Election integrity advocates have claimed that this threat justifies voter identification laws and other laws that have narrowed the ability for some citizens to vote, while voting-rights advocates have claimed that these measures are a form of voter suppression. These legal changes have occurred despite research that has demonstrated that virtually no actual voter fraud (specifically voter impersonation fraud) exists. While the consensus is that these voter suppression initiatives are driven by naked partisanship, this consensus fails to consider how longstanding ideological traditions about voter participation (and their interrelation with race, gender, and class myths) influence the debates over how to adequately regulate the right to vote.

This paper will propose a different theoretical framework to address the voter fraud myth: memetics. This paper argues that the most appropriate way to think about the myth of voter fraud is as a meme. A meme is “an idea, behavior, style, or usage that spreads from person to person within a culture” without regard to the truth or falsity of the idea. Memes spread because the ideas re-enforce the views of the purveyors of the meme and increase the purveyor’s power. In a sense, our memes can program us to accept or explain away ideas and can form the basis of our ideologies.

When viewed as a meme, the voter fraud claim can be analyzed as the latest variation on the ideology of exclusion of the “unworthy” from the franchise. The voter fraud meme replicates through both evoking myths and stereotypes about the worthiness of certain voters and motivates individuals and legislatures to replicate the meme through a belief that the unworthy voter will be a threat to the democratic process. This process of replication has contributed to the passage of voter identification and similar legislation, the popularity of heightened regulation of the voting process, and private acts of voter vigilantism. This account will demonstrate how the meme of voter fraud interferes either intentionally or inadvertently with the democratic value of inclusion and forces policymakers to fail to account for the effects of structural exclusion. Courts, scholars, and policymakers can use the analytic framework offered in this paper to more thoroughly understand the ideological forces behind the meme of voter fraud. This paper concludes by offering a framework by which courts and policymakers can separate the voter fraud meme and other such ideology from fact-driven analysis of right to vote issues.

How States Draw Congressional District Lines

Source: Jennifer Burnett, Council of State Governments, The Current State, no. 23, July 13, 2015
Nearly half of state governments in the U.S. use a process outside of the legislature to draw congressional district lines. A recent decision by the U.S. Supreme Court held that the Constitution’s Elections Clause permits voters to vest congressional redistricting authority entirely in an independent commission.

How States Draw Congressional District Lines

Political Entrenchment and Public Law

Source: Daryl J. Levinson, Benjamin I. Sachs, Harvard Public Law Working Paper No. 15-07, April 19, 2015

From the abstract:
Courts and legal scholars have long been concerned with the problem of “entrenchment” — the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of caselaw and scholarship has focused nearly exclusively on the formal legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of political community, or by altering the structure of political decisionmaking, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that would raise red flags from the perspective of public law. Recognizing the continuity of formal and functional entrenchment thus invites the question of why public law identifies and condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics.

American Plutocracy

Source: Timothy K. Kuhner, King’s Law Journal, Vol. 26 No. 1, 2015

From the abstract:
This essay explores the linkages between economic inequality, political inequality, and money in politics. Said another way, it explores the linkages between Thomas Piketty, Gilens & Page, and campaign finance law. It argues that the U.S. Supreme Court has constructed and justified a new form of government called plutocracy. Campaign finance cases from Buckley (1976) to McCutcheon (2014) contain a series of constitutional principles that serve to increase political inequality and economic inequality. Those constitutional principles also serve as the “apparatus of justification” sought by Piketty, the justifications for inequality that might allow today’s state of affairs to endure. This essay exposes those constitutional principles and their relationship to works by Piketty, Gilens, and Page. It also contains a summary of some key points from my book, Capitalism v. Democracy (Stanford University Press 2014).