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January 01, 2012


by Estelle H. Rogers

The right to vote is a central tenet of our democracy. Not surprisingly, it has become a quintessential American “export” to Eastern European and Middle Eastern countries that have been aspiring to democratic values since the early 1990s. Government and private assistance to fledgling democracies writing constitutions and statutes to create the right to vote, and technical assistance to countries striving to run free and fair elections, are now staples of our international development programs. Yet, despite our willingness to teach the skills of democracy, we still have a lot to learn.

Quite by accident, I became a voting rights lawyer in the summer of 2004. It was supposed to be a temporary project, helping to make sure that newly registered voters—of which there were millions that year—actually made it onto the rolls. But it turned out that there was a lot more to do, even after the election, and I’ve been working on voter registration, election administration, and voting rights issues ever since. Unfortunately, the “arc of history,” with regard to the right to vote, seems to be bending backward. And I fear it will take a much more aware and engaged citizenry, as well as a lot of pro bono lawyers, to bend it toward justice again.

The “Human Rights Hero” column, on the back page of this issue, tells the story of the successive waves of citizens added to the voting rolls over our history. Like other rights, the right to vote was fought for and won by a series of popular movements on behalf of groups that had originally been thought unworthy—racial minorities, women, young people—and their enfranchisement was memorialized in several amendments to our Constitution. But, sadly, the intentionally difficult constitutional amendment process does not seem to be necessary to disenfranchise voters, only to add them to the electoral mix.

Since the 2010 elections, an astounding 180 laws restricting voting rights have been proposed in legislatures in forty-one states. Of these, twenty-three such laws have passed to date in eighteen states. Of these, twelve regressive laws are currently in effect in eight states. We expect several more to be added to that list. These laws include strict photo ID requirements to vote; proof of citizenship to register or vote; rollbacks of early voting, absentee voting, or same-day registration; onerous restrictions on community registration drives; and laws making it more difficult or impossible for felons to regain their voting rights. The vehicles employed to restrict registration and voting are practically limitless, and their proponents are becoming ever more creative—a county in Nebraska has proposed cutting its polling place locations by half, and this needs no legislative vote! Needless to say, this and many of the other laws we are encountering disproportionately constrain the rights of low-income, minority, disabled, and elderly citizens.

But there is some good news. At the outset, although the U.S. Constitution gives states wide latitude to run elections, federal voting rights laws exercise meaningful limits on state autonomy. Preeminent among the federal laws is the Voting Rights Act of 1965, often called the “crown jewel” of the civil rights movement, particularly its preclearance provision in section 5, which requires some jurisdictions to have prior approval before implementing voting changes. The preclearance process has been enacted as a backstop to a number of the egregious laws passed recently, including photo ID laws in Texas and South Carolina and registration drive restrictions, among others, in Florida.

But there are two dark clouds looming over this silver lining: First, preclearance is only necessary in limited jurisdictions (for example, only five counties of the sixty-seven in Florida); second, the preclearance provision of section 5 is itself under attack. Several constitutional challenges to preclearance, on the ground that it is unnecessary and discriminatory in the present racial environment, are in the pipeline and wending their way to the Supreme Court. Though the D.C. Circuit has recently rejected this argument in Shelby County, Alabama v. Holder, voting rights experts see a reprise of this issue in the high court (which found it unnecessary to address the constitutionality of section 5 in Northwest Austin Municipal Utility District Number One v. Gonzales) as all but inevitable.

Less well known than the Voting Rights Act is the National Voter Registration Act of 1993 (NVRA), which was passed in response to a very low-turnout election in 1992 and the recognition by some members of Congress that voter registration had become a major barrier to electoral participation. The NVRA had been underappreciated and little litigated since the early years after its implementation, when a number of states challenged Congress’s authority to intrude upon the states’ traditional province of regulating registration, even for federal elections. These challenges were consistently and unceremoniously rejected.

New life was breathed into the NVRA in 2012 by an en banc Ninth Circuit decision in Gonzales v. Arizona, a case challenging Arizona’s proof of citizenship requirement for voter registration. By a large majority, the court held that requiring additional documentation beyond the federal voter registration form itself was a violation of the NVRA. (The issue of whether the state could require proof of citizenship to accompany the state registration form was not presented.)

The NVRA has also been invoked by the Department of Justice (and private parties) in a 2012 challenge to a purge of the voter rolls in Florida designed to get rid of supposed “noncitizens.” This process has already been found to be riddled with errors and brings back memories of the notorious “felon purge” in Florida in 2004, in which the state used a list that included thousands of citizens with no criminal record whatsoever.

In addition, the NVRA is an effective, affirmative tool to enforce voter registration at public assistance and disability agencies, a requirement of the law that has been as widely ignored as its companion provision, “motor voter”—registration at motor vehicle agencies—has been enforced. Restrictions on community-based voter registration drives also have been struck down under the NVRA, as recently exemplified by an injunction issued against many provisions of a Florida law imposing new recordkeeping requirements and a forty-eight-hour deadline for the submission of voter registration applications.

Clearly, the federal voting laws are powerful weapons to combat many of the state laws that have proven so popular with regressive legislators (some armed with model bills written by the American Legislative Exchange Council, better known as ALEC). But federal statutes are particularly potent in the hands of the Department of Justice, which is charged with enforcing them and which is not encumbered by the necessity of finding individual or organizational plaintiffs who have been injured by the state statutes. Unlike private litigants, the Department sues on behalf of the United States. Aside from this procedural advantage accorded the Justice Department, states often find it more persuasive to settle a lawsuit brought by the Department than to face the might of “The United States” in court.

Some state laws and constitutions also provide an effective foil for regressive laws. In Wisconsin, for example, two different state courts enjoined implementation of a particularly onerous photo ID law, citing a state constitutional provision enunciating an explicit right to vote.

The job of fighting back against the proliferation of laws constricting voting rights has fallen largely to public interest lawyers and their organizations at every stage. Lawyers write ameliorating amendments, talking points, and testimony while the bills are pending, advocate for gubernatorial vetoes when they pass, and go to court when they are signed. When we are lucky, we work in tandem with the Department of Justice. When we are extremely lucky, we have the assistance of law firms contributing their time and talent, as well as many other resources that only law firms have.

What the current period has shown us, once again, is that when faced with a crisis, the American people respond, taking action to rescue their rights. The increased public awareness of the far right’s concerted attack on voting, awareness due in no small part to the increased media attention to it, gives me hope that what we are seeing is merely another cycle in American political history, and it too shall pass. True, votes—and voters—will be lost, and we should not trivialize this loss. But the more we push back, and the more America’s lawyers join the fray, the more hope I have.

Estelle H. Rogers is legislative director of Project Vote, a national nonpartisan advocacy organization devoted to increasing political participation in traditionally disenfranchised communities. She has been a voting rights lawyer since 2004. She is also one of the Section of Individual Rights and Responsibilities’ delegates to the ABA House of Delegates.