New Study Rebuts John Roberts on Voting Rights Act Change

When the Supreme Court weakened the Voting Rights Act in 2013, it described the landmark civil rights law as outdated.  The formula that Congress had used back in 1965 to decide which areas of the country should have their voting laws placed under federal supervision no longer matched modern patterns of discrimination, Chief Justice John Roberts claimed.  “If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula,” Roberts wrote for the majority, explaining why that formula was being struck down.

But a comprehensive new study by a renowned historian and expert in voting discrimination suggests what voting rights advocates have been saying all along:

Roberts Got It Wrong!

Since 2009, Morgan Kousser, a professor of history and social science at the California Institute of Technology, has been collecting data on voting rights “events” across the country that resulted in a win for minorities.  Kousser looked at over 4,100 voting rights lawsuits, inquiries by the Justice Department, and changes to laws in response to the threat of lawsuits, the great majority at the county level, stretching from 1957 to 2013.

Kousser found that over 90% of these events occurred in “covered jurisdictions” that is places that until the Supreme Court’s decision, were required to submit their voting changes to the federal government for “pre-clearance.”  The great majority of these jurisdictions were in the South.

The evidence, Kousser writes, “shows that the Chief Justice’s factual assertions were incorrect, that the coverage formula was still congruent with proven violations.”

Kousser also looked at cases brought under the Voting Rights Act (VRA)’s Section 2, which bars racial discrimination in voting, and was unaffected by the Shelby ruling.  He found that from 1982, when Congress broadened Section 2, through 2005, 83.2% of successful Section 2 cases originated in covered jurisdictions, even though Section 2 covers the whole country.

Another key rationale that Roberts offered for striking down the formula was that the number of successful voting rights lawsuits has declined in recent years, rendering the Voting Rights Act’s pre-clearance system unnecessary.  But Kousser offers compelling evidence that this has happened in large part because of a series of Supreme Court rulings, mostly in the 1990s, that narrowed the VRA’s scope, thereby creating a self-fulfilling prophecy about the decline of discrimination.

“By rendering decisions that make it easier or harder to bring and win voting rights cases or make objections, the Supreme Court can, in effect, manipulate the evidence of discrimination, which it can then use, in a second stage, to justify a decision to further weaken or strengthen the tools,” Kousser writes.  “It can create the reality that it subsequently reacts to.”

The new study doesn’t look at what happened after the Supreme Court’s decision.  But if it had, it might have found more fodder for its case.  Several southern states have moved forward with restrictive voting laws that had been on hold until the Shelby ruling ended federal oversight.  One such law, Texas’s voter ID measure, was found by a federal judge last year to be intentionally discriminatory against minorities, but remains in place thanks to the Supreme Court.  And numerous local jurisdictions have made changes to their election rules that, voting rights advocates say, have reduced minority political power.

CLICK HERE to read the study.











NYC Wins When Everyone Can Vote! Michael H. Drucker Technorati Tag in Del.icio.us

A Possible End to Partisan Gerrymandering

The First Amendment forbids viewpoint discrimination, so when a state draws legislative district lines that minimize the power of people who belong to one political party while maximizing the power of people who hold another viewpoint, that violates the Constitution.  A majority of the justices on the Supreme Court, however, have refused to police partisan gerrymandering, largely because they believe that doing so would be too difficult.  As Justice Scalia wrote in his plurality opinion in Vieth v. Jubelirer, “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged.”

Scalia’s view, however, is questionable.  Mathematical models do exist that can measure when a state’s electoral map produces results that are wildly out of line with voter preferences.  And, in some recent gerrymandering cases, states have even openly stated that they tried to enhance some voters’ power at the expense of others.

Texas Attorney General and Governor-elect Greg Abbott (R) admitted in a 2013 court filing that “[i]n 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats.”  At the very least, a court should be able to discern that a partisan gerrymander occurred when the state freely admits as much.

A potentially significant writing contest sponsored by the Washington, DC advocacy group Common Cause seeks to further repudiate the claim that there is no meaningful way for judges to determine when a legislative map was drawn to give one party an advantage over the others.  The contest offers a $5,000 top prize to lawyers and scholars who submit papers “creating a new definition for partisan gerrymandering or further developing an existing definition.”  So the contest seeks to show that, if enticed by a cash prize, a community of scholars can discover something that the justices themselves cannot find, or at least that they claim not to have found, a way to prevent lawmakers from choosing their own voters.

Under existing precedents, where judges largely must allow partisan gerrymandering to continue unmolested, lawmakers have grown extraordinarily sophisticated in drawing maps that ensure that a state’s legislature or congressional delegation will bear little resemblance to the preferences of its voters.  Indeed, GOP-friendly maps played a significant role in keeping the House in Republican hands during the soon-to-expire Congressional term, despite the fact that the electorate actually preferred Democrats to Republicans in 2012.

Though it is unclear that the Court’s present majority could be convinced to strike down these sorts of gerrymanders under any circumstances, if nothing else, the anti-gerrymandering writing contest could provide a future Court with a legal standard it could use to prevent these kinds of maps from being drawn in the future.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Supreme Court and Partisan Gerrymandering

A new study out of Duke University casts serious doubts on the reasoning of the justices who have thus-far refused to strike down unconstitutional gerrymanders.

In 2012, Democratic U.S. House candidates in North Carolina received 81,190 more votes that Republicans.  Republicans received just under half of the votes earned by the two parties.  And yet, the GOP walked away with 9 of the state’s 13 congressional districts.  So, despite the fact that they earned just over 49 percent of the two-party vote, Republicans won nearly 70 percent of the state’s congressional seats.

Common sense dictates that the legislative maps that could produce such a result must be deeply flawed and that they must be biased towards Republicans, the same party that controlled both houses of the state legislature when these maps were drawn (although the state had a Democratic governor at the time of the redistricting, the governor has no veto power over congressional maps).  A new study by Duke Mathematics Professor Jonathan Mattingly and undergraduate Christy Vaughn seems to confirm this insight. Their study confirms that it is highly unlikely that a fair redistricting process would have produced a map as skewed towards one political party as North Carolina’s congressional map is.

Mattingly and Vaughn’s study redrew numerous random congressional maps, all of which complied with three rules: the districts must be “connected,” they must “come as close as possible to having equal number of people,” and “they should be as compact as possible.”  They then ran eight different simulations, some of which gave greater preferences to compact districts over equal population, while others placed greater emphasis on maintaining exact population.  Seven of the eight simulations did not produce a single map where Democrats won less than five congressional seats, assuming that every voter who cast a vote for a Democrat or a Republican in 2012 would have cast the same vote under the simulated maps.  The one simulation that did produce a handful of outlier maps where Democrats won only four seats did so “in less than 5% of the samples.”

The actual result of the 2012 elections, four Democratic congressional seats in North Carolina, did not even show up in all but one of Mattingly and Vaughn’s simulations.  In the simulation where it did arise, it did so only in a few unusual cases.  It is exceedingly unlikely that North Carolina’s GOP-friendly maps could have arisen organically.  Rather, as Mattingly and Vaughn demonstrate, they are almost certainly the product of a legislature that carefully designed the maps to produce a desired result.  The study’s authors argue that this result cries out for an independent check on redistricting.  “The fact that the election outcomes are so dependent on the choice of redistricting demonstrates the need for checks and balances to ensure that democracy is served when redistricting are drawn and the election outcome is representative of the votes casted.”

Which brings us back to the Supreme Court.  In the 2004 case Vieth v. Jubelirer, a total of four conservative justices joined an opinion by Justice Antonin Scalia arguing that federal courts should not get involved in partisan gerrymandering cases.  The essence of Scalia’s argument in Vieth is that courts are simply unable to come up with a legally manageable standard for determining which gerrymanders cross the line when they become impermissible.  According to Scalia, “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged.”

Justice Anthony Kennedy wrote a separate opinion in which he also lamented the fact that such a standard has not yet emerged, although he seemed more open than Scalia to the possibility that it could emerge in the future.  “When presented with a claim of injury from partisan gerrymandering,” Kennedy wrote, “courts confront two obstacles.”  The first is a “lack of comprehensive and neutral principles for drawing electoral boundaries,” and the second is “the absence of rules to limit and confine judicial intervention.”  While judges might have an intuition that a particular gerrymander crosses the line where it unconstitutionally favors the members of one party over another, Kennedy was not aware of any “comprehensive and neutral principles” that could be used to judge each congressional map to determine whether it crossed the line.

That is the genius of Mattingly and Vaughn’s study. It creates an objective methodology for assessing whether a map is impermissibly gerrymandered.  Admittedly, judges would still have to apply some discretion to determine how skewed a map must be before it must be struck down.  What if 10 percent of the maps produced using Mattingly and Vaughn’s methodology were in line with actual election results?  What if the number were 20 percent?  But in truly egregious cases like North Carolina, any reasonable judge can recognize that the map could not have resulted from a fair and neutral process.

Should the Court’s majority change in the coming years, Mattingly and Vaughn may have provided that new majority with the tools they need to eliminate North Carolina-style gerrymandering in the future.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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One Year After The Voting Rights Act Was Gutted

A year ago today, in a 5-to-4 ruling on Shelby County v. Holder, the Supreme Court invalidated a key provision of the Voting Rights Act.  Jurisdictions with histories of racial discrimination subject to preclearance, or special review by the Justice Department or a federal court before enforcing any new voting laws, were now free to legislate as the wished.

Though the conservative Justices may disagree, voting discrimination is not largely a thing of the past.  Since 2010, nearly two-thirds of the states previously covered under Section 5 of the VRA, nine of fifteen, have passed new voting restrictions.

And between 2000 and June 2013, there were 148 Section 5 objections or other VRA violations recorded in 29 states, mostly concentrated in the South.



Meanwhile, Congress which voted to renew the Voting Rights Act in 1970, 1975, 1982, and 2006, each time with increasingly larger margins, has yet to fix it this time around.

The Senate has introduced the Voting Rights Amendment Act.  In the House, it has languished.  House Judiciary Committee Chairman Bob Goodlatte apparently thinks that a fix to the Supreme Court’s Shelby decision is not needed.

BOTTOM LINE: Last year, the Supreme Court ruled that we no longer need the Voting Rights Act.  Today offers a good opportunity to remind them, and the legislators dragging their feet in Congress, that we do.  States continue to pass laws designed to erect barriers to voting and suppress voter turnout, often targeted disproportionately at minority communities.  There may no longer be literacy tests or poll taxes, but the modern voting restrictions are just as insidious and we need strong federal protections to prevent states from enacting them.

The best way to handle this is during the census.  Every ten years during the census all states are put on preclearance.  Under the law, a jurisdiction can get out from under Sections 4/5 if it can show a ten-year record of non-discrimination, so they get 90 days to file their bailout 10 year record.  After the Justice Department review, the preclearance map will change.  This will then affect those states put on preclearance when they file their redistricting maps.

The key to this concept is the creation to an independent review board to modify the Section 5 rules to keep up with future voter suppression laws.

The current laws are:

1. The first element in the formula was that the state or political subdivision of the state maintained on November 1, 1964, a "test or device," restricting the opportunity to register and vote.

2. The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964.

3. Proof that any proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group.

4. In 1970, Congress adopted an additional coverage formula, identical to the original formula except that it referenced November 1968 as the date to determine if there was a test or device, levels of voter registration, and electoral participation.

5. In 1975, the special provisions of the Voting Rights Act were broadened to address voting discrimination against members of "language minority groups."  An additional coverage formula was enacted, based on the presence of tests or devices and levels of voter registration and participation as of November 1972.  In addition, the 1965 definition of "test or device" was expanded to include the practice of providing election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age.

So we need to expand the formula to include new voter I.D. laws, reductions in early voting, and any other laws that state's can come up with in the future.










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Michael H. Drucker
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My Option for the Supreme Court Voting Rights Case

Today, the Supreme Court keep the Voting Rights Act but required a new coverage formula. In a 5-4 ruling that split the court along ideological lines, the court freed some or all of 15 states from the requirement that all changes to voting laws, procedures and even polling place locations get advance approval from the Justice Department or a panel of federal judges.

The formula for coverage under Section 4 of the Voting Rights Act

As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. The Act's definition of a "test or device" included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.

The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In "partially covered" states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.

In 1970, Congress recognized the continuing need for the special provisions of the Act, which were due to expire that year, and renewed them for another five years. It added a second prong to the coverage formula, identical to the original formula except that it referenced November 1968 as the relevant date for the maintenance of a test or device and the levels of voter registration and electoral participation. This addition to the formula resulted in the partial coverage of ten states, including Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming. Half of these states (Connecticut, Idaho, Maine, Massachusetts, and Wyoming) filed successful "bailout" lawsuits.

In 1975, the Act's special provisions were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups," which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." As before, Congress expanded the coverage formula, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing any election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third prong of the coverage formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota.

In 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years. Section 4, along with those other sections that are dependent upon it, such as Section 5 and 8, will expire in 2031.

The best way to handle this is during the census. Every ten years during the census all states are put on preclearance. Under the law, a jurisdiction can get out from under Sections 4/5 if it can show a ten-year record of non-discrimination.

They then file their bailout 10 year record. After the Justice Department review, the preclearance map will change. This will then affect each state when they file their redistricting maps.

With all the current laws making it harder for some to vote, I would like to see voters use the part of Section 4 that allows them to partition for the Justice Department to examine a bailout county or state and see if they have failed a bailout, and if proven, put them back on preclearance.

From Ballot Access News:

"Since it is not likely that Congress will re-write section four, the practical impact of today’s decision will be to increase the number of lawsuits. Section two of the act has not been limited in any way. It gives the U.S. Justice Department authority to sue any state or other jurisdiction that has an election law or practice that results in racial discrimination in voting. The number of such lawsuits will probably increase, because the new laws and practices that lead to such lawsuits will increase without the pre-clearance law in effect."










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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My Option for the Supreme Court Voting Rights Case

Today, the Supreme Court will hold a scheduled oral argument on the constitutionality of two key sections of the Voting Rights Act of 1965, in the case of Shelby County v. Holder (docket 12-96). Shelby County urged the Court to strike down those provisions and will be argued by Bert W. Rein of the Washington, D.C., law firm of Wiley Rein LLP. Dividing time in defense of the law will be the U.S. Solicitor General, Donald B. Verrilli, Jr. and Debo P. Adegbile, an attorney with the NAACP Legal Defense Fund in New York City, representing individual voters and other private defenders of the law.

My option would be to modify the opt-out (“bailout”) opportunity already in the law.

Just as the Court passed up the opportunity in 2009 to strike down the 1965 Act’s provisions, it could do so again this time, and perhaps with a variation of the back-up approach it took then: expanding the opportunity for jurisdictions to declare themselves beyond the law because they no longer discriminate against minority voters. But this is somewhat questionable, because it gets the Court into the business of rewriting a law of Congress, or at least seeming to do that.

Under the law, a jurisdiction can get out from under Sections 4 and 5 if it can show a ten-year record of non-discrimination. It is difficult to know how that very specific formulation could be changed by the Court without it getting into actual legislative drafting. Perhaps the Court might strike down the ten-year “clean hands” record, and tell Congress to find something that makes it easier to bail out. I would change it to 5 years.

The jurisdiction that is directly involved in this case, Alabama’s Shelby County, cannot qualify for the existing bailout, because it simply does not satisfy the ten-year minimum of “clean hands.”

The federal government and the other defenders of the 1965 Act are pushing the bailout option strenuously, in hopes that it would be the way to salvage Sections 4 and 5, and thus the heart of the Act.

With all the current laws making it harder for some to vote, I would like to see voters use the part of Section 4 that allows them to partition for the Justice Department to examine a bailout county or state and see if they have failed a bailout, and if proven, put them back on preclearance.

UPDATE
Following through on the deep constitutional concerns stated in its prior Northwest Austin decision, a majority of the Court seems committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes. The vote seems quite likely to be five-to-four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Supreme Court to Review Minority Voting Rights Law

The Supreme Court on Friday agreed to review a legal challenge to the Voting Rights Act, a landmark law adopted in 1965 to protect African-American voters who had faced decades of discrimination at the polls.

The high court accepted an appeal brought by Shelby County, Alabama, challenging a core provision of the act that requires nine states and several local governments with a history of bias to get federal permission, Section 5, to change their election procedures.

I have been looking at this issue for awhile. I think we should expand Section 5 to ALL the states. This would require any state's change to their voting process to first be pre-approved before implementation.

This would then reduce the many court cases, that would have to initiated by the voter and good government groups, if Section 5 is struck down, that works their way to the court system generating lawyer's revenue and voter's pain in the pocket.










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Michael H. Drucker
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Justices Reject Request to Block Early Voting in Ohio

The Supreme Court on Tuesday turned down a request from officials in Ohio to block an appeals court ruling concerning early voting there. The Supreme Court’s brief order, without noted dissents, was a victory for the Obama campaign.

Ohio had planned to eliminate early voting the weekend before the election next month, but it made an exception for members of the military. Earlier this month, the federal appeals court in Cincinnati ruled that the option of voting early must be offered to all voters if it is offered to the military.

The Supreme Court’s action left local election officials free to allow early voting or not. But if they allow it, they must welcome all voters.

In the wake of the decision, Ohio’s secretary of state gave up on Republican efforts to restrict the broader voting and directed local voting boards to stay open several hours each day throughout the weekend and the Monday before the election.









NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Supreme Court Affirms How Prisoners Are Counted in a Census

Thanks to Ballot Access News for this post.

On June 25, the U.S. Supreme Court summarily affirmed the decision of a 3-judge court in Maryland, in Fletcher v Lamone, 11-1178. Maryland and a handful of other states now draw congressional and legislative districts under the assumption that prisoners should be tallied (for redistricting purposes) in the community in which they lived before they were imprisoned, instead of in the town where the prison is located.

The 3-judge court had upheld Maryland’s system. Today’s summary affirming means that other states are now free to follow the same policy, without fear that that method of counting prisoners is unconstitutional.

New York tried to pass this in 2012 but could not get it passed in both houses of the state legislature.









NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Campaigning or Voter Education?

Did you know the father of our country is also the father of campaign finance reform. After losing his first election in 1755, George Washington took the novel step of entertaining prospective voters in 1757 with a lavish buffet at the polling booth.

In 21st-century politics, we might call it "voter education". In 1757, it was a barrel of punch, 35 gal. of wine, 43 gal. of strong cider, and dinner with friends. It cost 39 pounds and 6 shillings or $195 in today's dollars. It worked, and Washington was elected to the Virginia House of Burgesses.

His new colleagues also promptly passed a law barring candidates or "any persons on their behalf" from giving prospective voters "money, meat, drink, entertainment, provisions, presents, gifts, rewards, in order to be elected."

Today, The U.S. Supreme Court, with huge assists from a federal appellate court and a dysfunctional Federal Election Commission, has unleashed a torrent of private cash into the public political system. Where is the House of Burgesses when we need them?

Three problems have arisen, just as the burgesses anticipated.

First, are the candidates and the persons acting on their behalf, raising and spending billions of dollars. Money doesn't magically appear. Office holders have to devote enormous time and energy to fundraising, time and energy diverted from the lawmaking and governmental duties they were elected to perform.

Second, is the flood of advertising, overwhelmingly negative. The concern here is that the venomous rhetoric leaves no space for substantive discussion of the serious challenges we face. Imagine if the constructive energy was devoted to:

- Why gasoline prices are so high?

- How to deal with Iran's nuclear program.

- Why the maze of practices and competitive forces is producing the world's highest health care cost?

- How to strengthen Social Security?

- The need to redo our tax system.

Third, and it starts after Election Day. After the Super-PAC financed negative campaign rhetoric, where do the winning candidates find any room for compromise?









NYC Wins When Everyone Can Vote!

Michael H. Drucker
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