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Voting rights: A path forward here and in D.C.

Taking advantage of a U.S. Supreme Court ruling, a number of states have rushed to create new restrictions, particularly through voter ID laws. But there are ways to respect rights better.
Activists gathered in Alabama in 2012 to protest state restrictions on voting. A march in Selma helped lead to the Voting Rights Act. (Click image to enlarge.)

Activists gathered in Alabama in 2012 to protest state restrictions on voting. A march in Selma helped lead to the Voting Rights Act. (Click image to enlarge.) Nicole Cairns, Reform Immigration for America/Flickr

U.S. Supreme Court Building

U.S. Supreme Court Building Ken Hammond/U.S. Department of Agriculture

The U.S. Supreme Court struck down a key provision of the 1965 Voting Rights Act just a year ago this month. The Court’s decision sparked a debate on the state and federal level about how (or whether) we should “fix” the Voting Rights Act or somehow fill the void that the ruling created. 

On the anniversary of the Voting Rights Act’s darkest hour, it’s time to embrace a new framework for 21st Century voting rights. This new framework would reinvigorate (and update) those protections in the federal Voting Rights Act that must emanate on the national level.

But that’s not enough. The Court’s decision shows that we must combine this federal effort with new protections on the state level.  Both fixing the federal Voting Rights Act and passing state-by-state protections will ensure that our elections continue to reflect this increasingly diverse country.

But first, let’s explore why we need a fix in the first place, and then discuss the proposed fixes that Congress and the states are considering.

Last year, the U.S. Supreme Court took up Shelby County v. Holder, an appeal concerning the constitutionality of Sections 4 and 5 of the Voting Rights Act. 

Section 5 involves so-called “covered jurisdictions” throughout the United States. These jurisdictions historically had discriminated against racial minorities — particularly African Americans and Latinos — so much that they had to seek federal approval before implementing any changes in their voting practices or procedures. Through this process of “preclearance” the Department of Justice was able to weed out discriminatory practices or reforms (such as moving polling places at the last minute) before the states or local jurisdictions could implement them.

Section 4 contains the “coverage formula,” determining which jurisdictions required the early federal approval for any changes in voting practices. Sections 4 and 5 were always meant to work together. Together these two provisions were used to prevent discrimination in advance, rather than relying on drawn-out litigation based on a law’s discriminatory effects.

The coverage formula, and by extension the preclearance requirements, covered nine states completely (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia) and specific counties in another six states (California, Florida, Michigan, New York, North Carolina, South Dakota).

For the most part, however, that list hadn’t changed since 1965. And that is where the Court found a constitutional infirmity. 

Officials of Alabama's Shelby County argued that Section 4 was unconstitutional because the same jurisdictions that were covered in 1965 were still covered in 2013 (with few exceptions). Despite earlier warnings from the Court, Congress had failed to update the coverage formula. 

The Court agreed with Shelby County, pointing out that because the coverage formula had not meaningfully changed in nearly 50 years, it suffered from both over-inclusion and under-inclusion — meaning there were some jurisdictions that should no longer be on the list, and some jurisdictions should be on the list, but aren’t. The Court therefore concluded that Section 4 was woefully — and unconstitutionally — outdated.

The Shelby County decision killed two birds with one stone: striking down Section 4 meant that Section 5’s preclearance requirements no longer applied to any jurisdictions. Preclearance, which for decades had served as a bulwark against discriminatory election laws, was no more.

Almost immediately after the Shelby County decision, eight of the nine states that had been covered under Section 4 immediately moved to pass laws the Justice Department had blocked under Section 5. These included onerous new voter identification laws and registration requirements, cuts to early voting and other restrictions on when and where individuals could vote.

In other words, it was open season for those seeking to restrict the right to vote.

While many of these laws have sparked lawsuits under other sections of the Voting Rights Act (particularly Section 2), without Section 5 litigants can rarely stop these laws before they go into effect. 


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Comments:

Posted Thu, Jun 26, 4:27 a.m. Inappropriate

Three pages to get to "I want to allow foreign nationals/illegal aliens vote in Washington State". From a co-author of the Washington Voting Rights Act.

Cameron

Posted Thu, Jun 26, 11:38 a.m. Inappropriate

Where is that quote in the article? Or even by implication.

louploup

Posted Fri, Jun 27, 5:09 a.m. Inappropriate

Mr. Perez's history is easily brought up in an internet search.

http://www.seattlemet.com/news-and-profiles/publicola/articles/afternoon-fizz-december-2013

Cameron

Posted Thu, Jun 26, 5:47 a.m. Inappropriate

The Democrat's conspiracy.

http://www.reuters.com/article/2014/06/16/us-usa-new-york-votingrights-idUSKBN0ER2KU20140616

BlueLight

Posted Thu, Jun 26, 11:40 a.m. Inappropriate

It's not a conspiracy; it's out-in-the-open politics.

louploup

Posted Thu, Jun 26, 7:19 a.m. Inappropriate

1 of 2

[H]ere in Washington state the Legislature has made significant efforts to make it easier to register and to vote.

Heh. Except when it wants to infringe peoples' right to vote.

The state enabling statutes for old-Metro violated the rights of people here to vote for the legislators setting policy for that municipality. Old-Metro operated around here despite what the the 14th Amendment requires for decades. It finally was struck down by a court in 1990.

Everyone who mattered knew old-Metro's board was structured in a way that violated one of the limits the federal constitution imposes on states. _Avery v. Midland County_ was issued in 1968 and it held the “one person one vote” mandate applied to local governments. The political leadership here liked the tax revenue streams and the lack of accountability old-Metro provided it though. That's why that novel taxing district the state legislature created was allowed to continue for decades despite what the federal constitution requires.

And of course Sound Transit also has an unconstitutional structure. The state legislature didn't want people here to be able to vote for or against its policy-setting boardmembers either. Sound Transit's board is controlled by political appointees. The state legislature delegated FAR too many significant governmental powers to that board, violating yet another 14th Amendment limit on its powers.

crossrip

Posted Thu, Jun 26, 7:20 a.m. Inappropriate

2 of 2

Any lawyers know how to log in and post at Crosscut? Let's see if one of them can argue Sound Transit is not an unconstitutional oligarchy.

That municipality's enabling legislation was adopted in 1992. Its governing body is controlled by political appointees. Three of the individuals on the board are elected directly to it. However, the other 15 boardmembers are appointees, selected by only four individuals. THAT makes it an oligarchy, by any measure.

There is a 14th Amendment limit on the right of state legislatures when it comes to the municipalities they create. That limit is supposed to prevent state legislatures from putting policy-making boardmembers beyond the reach of the voting public. Unfortunately, our state's legislature disregarded that limit on its powers in 1992 when it set up Sound Transit.

The relevant legal standard in this area is supplied by a 1967 US Supreme Court opinion known as _Sailors v. Kent Bd. of Education_:

http://supreme.justia.com/cases/federal/us/387/105/case.html

That longstanding authority never has been overruled or narrowed. It addresses how appointive-board entities (like Sound Transit) only may be delegated narrow powers, powers that merely allow them to effectuate legal policies established by representative legislative bodies superior to them.

Go ahead – read that _Sailors v. Kent Bd. of Education_ opinion. It is brief as these things go. It explains that Michigan’s legislature stayed within that limit the 14th Amendment imposes on it. The Court’s analysis of the key issue proceeds from the following premise:

“We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means, rather than by an election.”

Michigan’s legislature only had delegated narrow powers to its county school boards. Those boards only could administer certain legal policies that had been established at the state level by a directly-elected body. That is why those boardmembers were “of the non-legislative character”. In the terminology used by the US Supreme Court, those powers only allowed that public entity to perform "essentially administrative functions", so it was not required to have a directly-elected board.

In contrast, Sound Transit's board was empowered by this state's legislature to set a wide range of governmental policies that affect millions of people and have significant, permanent financial and transportation impacts. The powers and functions delegated to it were not merely administrative, which means it always has existed in a form that violates the federal constitution.

Now -- anyone want to try citing any US Supreme Court authorities that they think might justify Sound Transit's political-appointee controlled governing body? Go for it. We'll discuss what you come up with.

crossrip

Posted Thu, Jun 26, 8:58 a.m. Inappropriate

The reason the author of this piece plays stupid about how Sound Transit's structure is contrary to that 14th Amendment limit is he's employed by a law firm that has been paid over $14 million in legal fees by that municipality over the past five years.

crossrip

Posted Fri, Jun 27, 8:13 a.m. Inappropriate

It is interesting how most issues today require competent and honest journalism. Journalism that requires dogged pursuit of all facts. The voter ID issue is a good example.
Advocates of an assumed unlimited illegal and legal immigration state that the issue of making sure there is adequate identification of voters make sure the discussion is about disproportional racial impact. And those who want identification identify fact that large numbers of illegal immigrants can and do vote. A few states have made an effort to vet their voter registration lists and found thousands of people on their voter lists and thousands of people who have voted in recent elections who were not citizens.

Those non-citizens were found in Colorado and Florida after secretaries of state there sued to force federal immigration authorities to check their states' voter rolls.Three states — Washington, New Mexico and Utah — allow illegal immigrants to get licenses because their laws do not require proof of citizenship or legal residency. An Associated Press analysis found that those states have seen a surge in immigrants seeking IDs in recent months, a trend experts attribute to crackdowns on illegal immigration in Arizona and elsewhere.
Utah gave 41,000 illegal immigrants driver’s licenses in just the first week of June, 2010, compared with 43,429 for all of 2008 (the state did not provide data for 2009) and Washington State granted 3,200 licenses to people from outside the U.S. during the same period, surpassing the pace of 5,992 for all of 2009. An American driver's license is a requirement for many jobs, and despite the recession, Washington State made sure that jobs were available to illegal aliens. For a period of time this threw a spotlight on license programs, which supporters say make financial sense because unlicensed drivers typically do not carry car insurance. Opponents insisted the laws attract illegal immigrants and criminals. 'Washington state and New Mexico have been magnet states for the fraudulent document brokers, human traffickers and alien smugglers for years,' said Brian Zimmer, president of the Coalition for a Secure Driver's License, an advocacy group in Washington, D.C. He said there is mounting evidence that the spike in license applications is a result of pressure on immigrants in states such as Arizona and Oklahoma, where police have been authorized to help enforce federal immigration laws. Republican lawmakers in New Mexico and Washington state have pushed to tighten the laws in recent years, only to be thwarted by Democrats. The issue is less heated in Utah, where illegal immigrant licenses carry only driving privileges. People cannot use the IDs to board a plane, get a job or buy alcohol, for example. Candidates in New Mexico's governor's race have made the licenses a campaign theme, with the Republican saying she would revoke IDs granted to illegal and legal immigrants since the state enacted the law in 2003, and she was elected. The AP analysis of data in the three states revealed some striking numbers: The rate of licenses issued to immigrants during the 10 weeks that followed approval of the Arizona law reflected a 60 percent increase over the annual average for last year. By comparison, the rate of licenses issued to non-immigrants during the same period increased only modestly. Among the other findings: — New Mexico issued 10,257 licenses to immigrants through the first six months of 2010, compared with 13,481 for all of 2009. The pace has intensified since April, when neighboring Arizona passed its immigration law. The figures include both illegal immigrants and legal residents from outside the U.S. — New Mexico issued about 417 licenses a week to immigrants from the day after Arizona passed its law through July 1. That is a big jump from the 323 per week it was issuing from Jan. 1 to the day before the law passed. — Utah handed out 41,000 illegal immigrant licenses for 2010 through June 7, compared with 43,429 for all of 2008. — Washington granted 3,200 licenses to people from outside the U.S. through June, exceeding the pace of 5,992 for all of 2009. One Hispanic family moved to Washington because the husband and wife were spooked by the Arizona law that requires officers to check a person's immigration status when enforcing other laws. A federal judge has put most of the law on hold, saying it may be unconstitutional. Many illegals are attracted to states that provide licenses because of the ease of getting a license without documents. Many think Washington is easily the safest. As one put it, "I know that it's not OK for people who come here to cross the border, but there's people that come here that want to contribute ... that want to follow the rules,' said one, 31, who has a 2-year-old daughter. Recent fraud cases in New Mexico and Washington show some people are trying to exploit the rules. An Illinois man is accused of driving two Polish immigrants from Chicago to Albuquerque last month in a scheme to charge them $1,000 each for help getting driver's licenses, according to a criminal complaint. Jaroslaw Kowalczyk of Des Plaines, Ill., allegedly ran an advertisement in a Polish newspaper boasting, 'Social security not necessary. 100 percent guarantee.' In Washington, the FBI was tipped that people from across the country were coming to the state because of its license law. Three people, including one current and one former state Licensing Department employee, were arrested in June in a case dealing with the sale of identification documents to illegal immigrants. 'We don't think we're asking for much,' said Rep. Tom Campbell, sponsor of a bill last year in Washington seeking to require proof of citizenship to get a license. 'We have to have a handle of who's in our state.'

That is the side of the Real Id disputes that gets little media coverage, and what is not mentioned in this article.

Posted Sat, Jun 28, 5:15 p.m. Inappropriate

I'm puzzled. This article is about continuing the presumption of guilt and fiddling with the details? At any point are we going to acknowledge that people can and should have ID in the 21st century? What if we grandfather the elderly? Anyone receiving public assistance has ID for those purposes. What other excuses are there not to have ID?

avocats

Posted Mon, Jun 30, 11:09 p.m. Inappropriate

I scrolled down, to the paragraph:

IT WAS OPEN SEASON FOR THOSE SEEKING TO RESTRICT THE RIGHT TO VOTE.

Told me all about the author, and the principle used in editing the story,and fact checking standards.

Thanks for making that easy.

simorgh

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