State of Elections

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Tag: preclearance

Pennsylvania is leading the charge to reenact Section 4 of the Voting Rights Act

By: Ebony Thomas

From slavery to Jim Crow, America has a long, dark history in the treatment of its African American citizenry.  Although Congress ratified changes to the United States Constitution three times to benefit African Americans (i.e., the 13th Amendment abolished slavery, the 14th Amendment provided African Americans equal protection, and the 15th Amendment gave African American men a right to vote), the franchise did not come easily for former slaves. Many states imposed barriers, such as poll taxes, literacy tests, intimidation, and other methods, to keep African Americans from accessing the ballot. It was not until 1965, under the leadership of President Lyndon B. Johnson, that the nation affirmed the promise of the Constitution to all Americans and effectively decimated States’ self-imposed barriers that kept African Americans from exercising their right to vote.  This legislation is known as the Voting Rights Act of 1965.

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Federal Court Ruling Creates Chaos for North Carolina Primaries But There May Be a Solution

By: Blake Willis

Election litigation has experienced a new spike in recent years, with many states being involved with litigation over redistricting plans, Voter I.D. laws, and other ballot access issues. Since the inception of litigation under the Voting Rights Act of 1965 (VRA), there has been a consistent concern that federal courts should not be involved in determining the policies of voting, re-districting, and other related issues. Cases such as plurality opinion Davis v. Bandemer express such concerns, stating that partisan gerrymandering concerns are not justiciable, and that opening the door for federal courts to examine similar claims may set a dangerous precedent. In Veith v. Jubelirer, Justice Scalia echoed this sentiment, arguing that it is an increasingly difficult task for courts to determine what the predominant factor for drawing a district line may be. The expanding jurisprudence from both partisan and racial gerrymandering cases proves this argument may hold some validity, as evidenced by courts’ disagreement over the correct standard to apply, what the evidentiary standard should be, and who the burden of proof rests upon, as just a few examples. Although this litigation has been ongoing for decades, it is by no means near reaching an end.

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Texas: District Court Orders Texas to Re-Write Voter ID Educational Materials, Requires Preclearance Before Publishing Materials

By: Benjamin Daily

In a new development in Texas’ Voter ID saga, U.S District Judge Nelva Gonzales Ramos found that Texas had misled voters and poll workers about the ID requirements to cast a ballot in the November 2016 election. The new order also requires Texas to obtain preclearance before publishing its educational material. The challenge comes after the Fifth Circuit struck down SB14, the Texas Voter ID law, in Veasey v. Abbott, the Texas Voter ID law last July.

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It’s Not All Bad: Felony Disenfranchisement and Preclearance Aftermath in Virginia

by Student Contributor

On June 25, 2013, the levee finally broke. After earlier hinting that it would, the Supreme Court of the United States struck down the formula for determining which jurisdictions required preclearance under the Voting Rights Act.

Predictably, pandemonium ensued. Some commentators forecasted that states would revert to practices that result in further restrictions on who can vote. An example in Virginia is a new voter ID law that will now go forward unchecked by the Department of Justice thanks to the Court’s decision in Shelby declaring the VRA preclearance formula unconstitutional. Continue reading

Alabama sidesteps VRA § 5 preclearance status quo: I’ll see you in court

by John Alford

As part of the mandated decennial redistricting, the Alabama legislature will change the lines for the State’s congressional and school board districts. Current and proposed maps can be found here. This redistricting will alter the political landscape of the State, but before Alabama can move forward on redistricting, the Federal Government has to approve of the new map as per the Voting Rights Act § 5 (“VRA”). Under the VRA § 5, there are two paths Alabama can take to get preclearance. It can seek approval through the Justice Department (DOJ) or through the U.S. District Court for the District of Columbia. (For more on the VRA § 5, particularly why and how states like Alabama get preclearance from the Federal Government, see here.) Alabama has opted to take the matter to court.

Like many other covered jurisdictions, Alabama is unhappy with the requirement that the Justice Department (DOJ) keep tabs on its election process. To wit, Shelby County recently filed suit challenging the constitutionality of the preclearance process, so far unsuccessfully (see more about this lawsuit here.) The opinion in Shelby County emanates from the same court from which Alabama is seeking preclearance on redistricting. But the ruling against Shelby County should not alter how the District Court views the issue here. Overturning VRA § 5 would be an extreme political move, essentially declaring that issues of race no longer disrupt the electoral process in states historically notorious for prejudicial practices. Granting preclearance to a redistricting plan, as routinely done in the past, is nowhere near as high a hurdle for Alabama to clear. Continue reading

When is state law not enforceable?

Texas awaits DOJ approval for its new voter photo ID law.

by Daniel Carrico

The battle over Texas’s controversial new voter identification bill should be over. Instead, it appears to be heating up.

Senate Bill 14 amends the Texas Election Code, requiring voters to present an approved form of photo identification to cast a ballot in state elections. Voters may rely on most forms of commonly-used government-issued photo identification, such as a driver’s license or passport. Voters who are unwilling, or unable, to pay for identification are also covered; the bill creates a new form of identification called an “election identification certificate” which can be obtained at no cost from the Texas Department of Public Safety.

Both the Texas House and Senate approved the bill and its photo identification requirements, following months of heated debate across the state. And, on May 27, Governor Rick Perry signed the bill into law. Notwithstanding any post-enactment court challenges, gubernatorial endorsement is the final step in the legislative process—or at least that’s how things usually work in Texas. Continue reading

An article on Florida election law that does not contain the word “recount”

by John Loughney

In the cold, competitive (comfortingly predictable) world of election reform, two factions are locked in an epic, endless struggle, and both are positive the guys on the other side of the aisle threaten to undermine our cherished democratic system.

On one side, the shadowy Republicans—or so the Dems would have you believe—ruthlessly disenfranchise the poor, the pigmented, and the felonious. They callously seek to raise identification standards beyond all reason and whittle voting windows to woeful new lows.

On the other, the conniving Democrats—or so the GOP attests—are valiantly protecting nothing more than the madness of an election process riddled with voter fraud. They ignore how administrative inconsistencies have marred our legitimacy and skewed our tallies, how civics teachers run rampantly afoul of state election law, how…

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AZ (preclearance): Arizona challenges the Voting Rights Act; why not just bailout?

by Kevin Elliker

On August 25, 2011, Arizona Attorney General Tom Horne filed suit on behalf of the state of Arizona against the Department of Justice alleging the unconstitutionality of the Voting Rights Act. Horne specifically challenged the preclearance requirements of Section 5 of the act. Attorney General Eric Holder vowed to defend the Voting Rights Act, declaring that it plays “a vital role” in ensuring fairness for American democracy.

A brief primer on Section 5 of the Voting Rights Act:

In 1965, Congress passed the VRA in order to better enforce the 15th Amendment. Jurisdictions with histories of pronounced racial discrimination in voting practices were singled out by Section 5 and required to receive preclearance from the Attorney General or a three-judge panel of the District Court of the District of Columbia for any changes to their voting laws. The 1965 iteration of the preclearance formula forced mostly southern states into this category, but also specific jurisdictions within Arizona. In 1970, Arizona was once more included as partially covered by preclearance requirements. It was not until 1975, when the formula for preclearance was changed to include states that provided election materials in only English despite having at least five percent of voting age citizens from “a single language minority” that Arizona became an entirely covered jurisdiction. The 1975 iteration relied on 1972 election data, which meant that Arizona’s 1974 implementation of bilingual voter materials did not preclude them from preclearance requirements. The 1982 and 2006 renewals of VRA followed the 1975 formula. Continue reading

SC (voter id): “We do not have a constitutional right to buy Sudafed or be a frequent flier; we do have a constitutional right to vote.”

by Sheila Dugan

On May 11, 2011, the South Carolina General Assembly passed Act R54.  The new law would require individuals to present photo identification to vote. Governor Nikki Haley signed the bill a week later. The Department of Justice has yet to pre-clear the new law, stating that it needs proof from South Carolina that Act R54 would not disenfranchise voters. Valid forms of identification include a South Carolina driver’s license, a passport, military identification, a voter registration card with a photograph, or another form of photographic identification from the Department of Motor Vehicles (DMV).

Chris Whitmire, Director of Public Relations and Training at the South Carolina State Election Commission (SCSEC), spoke to me about the preparations taking place if the law is pre-cleared. These preparations include training county election officials, notifying registered voters without proper identification through direct mail, and a social media campaign about the new law. The General Assembly allocated $535,000 to the SCSEC for the voter education campaign and the creation of new voter registration cards that contain a photograph of the voter.

Registered voters would be able to obtain the new voter registration cards with the same documents they now use to register to vote (these include a photo ID or documents like a utility bill or pay stub with their address printed on it.) This makes the new identification easier to obtain than other government-issued forms of identification.  Another unique feature of the new card is that it will not expire. Continue reading

Weekly Wrap Up

Every week, State of Elections brings you the latest news in state election law.

– A recently filed lawsuit in North Carolina seeks to challenge Section 5 of the Voter Rights Act. Section 5 requires that certain states and municipalities “preclear” changes to their voting laws with the Attorney General.  Essentially, the Attorney General has a veto over any changes to voting laws in certain states, but not in others.  This North Carolina lawsuit (LaRoque v. Holder) claims that Section 5 exceeds Congress’s authority under the Fifth, Fourteenth, and Fifteenth Amendments to the Constitution.

The iPad has already made its mark on the election law community.  Project Vote, a voter registration and engagement organization, is teaming with Echo Interaction Group to develop a new voter registration application for the iPad. The application would allow users to instantly and accurately record, collect, and upload voter data to a secure server.  Only four states currently allow online voter registration, but the organization is optimistic that more states will follow suit.

– California State Senator Leland Yee has introduced a bill that would permit same day registration in that state.

– The Ohio House of Representatives has unanimously passed a bill that will allow overseas military forces to request absentee ballots electronically, instead of requiring the request be sent through regular mail.

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