In about 13 months, Americans will elect a President, members of Congress, Governors, members of state legislatures, judges, and countless local officials. This should be a demonstration of democracy in action. Let’s make sure it is.
American voters will not be able to choose their representatives where voters cannot register, voting rolls are incomplete, access to polling places varies by income or color, ballots cast are vulnerable to manipulation and loss, false instructions infect social media, and voting districts are gerrymandered to benefit one or another political party. Deficits in our election processes are warning signals. After the Constitutional Convention in 1787, Benjamin Franklin was asked, “Well, what have we got Doctor, a republic or a monarchy?” Franklin reportedly replied, “A republic, if you can keep it.”
Keeping it depends fundamentally on enabling citizens to vote freely in fair and just elections. As the US Supreme Court wrote in 2015, it is “the core principle of republican government . . . that the voters should choose their representatives, not the other way around.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015) (internal quotation marks omitted).
Threats to voting rights and fair elections are threats to the republic and the rule of law. Countries that ignore the rule of law invite violations of civil and human rights. This is our lane. The Section’s mission is “to provide leadership to the legal profession in protecting and advancing human rights, civil liberties, and social justice.”
Protesters in Hong Kong remind us that democracy is not a spectator sport. Divisions based on race, color, national origin, religion, gender, and ideology are intensifying, undermining faith in democracy itself. It is time for action. For these reasons, CRSJ is launching a new Initiative to protect Fair Elections and Voting Rights. This is an effort on two broad fronts: ensuring that all citizens are able to vote and that elections are free and fair.
We cannot expect the federal courts to address all the threats to voting rights or fair elections. The US Supreme Court’s 5:4 decision in Rucho v. Common Cause, 139 S. Ct. 2484 (June 27, 2019), concluded that the federal judiciary has no jurisdiction to resolve claims of partisan gerrymandering of congressional districts, because they are nonjusticiable political questions. The majority did say that the courts have a role in “two areas — one-person, one-vote and racial gerrymandering.” Notably, the North Carolina maps at issue in Rucho were drawn in 2017 to replace maps that had been held unconstitutional because they discriminated on the basis of race. Nonetheless, the Court found it impossible to agree on a “judicially administrable standard” for how much political partisanship is too much.
In dissent, however, Justice Sotomayor argued, “That kind of oversight is not only possible; it’s been done.” State courts have decided partisan gerrymandering claims and struck down districting plans that violated state constitutional provisions. See, e.g., League of Women Voters v. Commonwealth 178 A.3d 727 (Pa. 2018); League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (Fla. 2015).
On September 3, 2019, a North Carolina Superior Court found that the state General Assembly violated the state constitution by drawing state voting districts to produce a majority of legislators from one party. (In the 2018 North Carolina House elections, Republicans had won 54% of the seats with 48.8% of the statewide vote.) In Common Cause v. Lewis, the court required new maps to be drawn by September 18 (they were), noting that the state’s Supreme Court “has long and consistently held that ‘our government is founded on the will of the people,’ that ‘their will is expressed by the ballot,’ and “the object of all elections is to ascertain, fairly and truthfully the will of the people.’”
Of course, gerrymandered voting districts are only one obstacle to fair elections. In September 2019, a Tennessee court refused to dismiss challenges under the First and Fourteenth Amendments to the state’s new law imposing detailed requirements on organizations that help eligible voters to register. Additional obstacles to voting rights and fair elections include restrictions on registering to vote, erroneously deleting citizens from the list of registered voters, limiting polling places and hours to those that are inaccessible to low-income voters, voters of color, and voters from a disfavored political party, malfunctioning voting machines, lack of audit capabilities, and many more.
It is hard to claim our democratic bona fides when only a fraction of eligible citizens actually vote. This is a non-partisan concern. Barriers should be removed. Voting should be enabled and encouraged. Only then we will be able to say with credibility that we are a democracy with a representative government.
By working to protect voting rights and fair elections, we help ensure that efforts to protect civil rights, human rights, and social justice continue. This is indeed our lane. The challenges are many: the rights of women, African Americans, Native Americans, the elderly, the disabled, immigrants, and asylum seekers; fair and impartial courts; health care, education, economic, criminal justice, and national security institutions that function fairly for everyone; freedom of religion, speech, and press; protection of privacy and the environment. Our CRSJ committees (see Chart) offer expertise and assistance in all these areas, with analysis, programs, educational materials, and toolkits for lawyers, lawmakers, and the general public.
I have the privilege of serving this Section as Chair in the 2019-2020 Bar year. How will you serve? The Section of Civil Rights and Social Justice is recognized as the conscience of the American Bar Association. The ABA is the voice of the legal profession. That voice listens to its conscience. If you want to make a difference, join us and make your voice heard.
Wendy K. Mariner
Wendy Mariner is Chair of the ABA Section of Civil Rights and Social Justice and Edward R. Utley Professor of Health Law at Boston University School of Public Health, Professor of Law at Boston University School of Law, and Professor of Medicine at Boston University School of Medicine.