August 06, 2016

Experts survey landscape of new voting laws that impact upcoming elections

As the nation gears up for its elections this fall, the American Bar Association Young Lawyers Division held a program on voting rights, “America Votes 2016! Developments in Election Law,” on Aug. 5 during the ABA Annual Meeting in San Francisco. 

In April, the U.S. Supreme Court rendered its decision in Evenwel v. Abbott, a case on whether states may count all residents or just the ones who are eligible to vote, in drawing legislative districts.

“In a decision that drew on the history of the adoption of the Fourteenth Amendment and that chose an inclusive view of our democracy, the unanimous Court rejected the request that it limit the apportionment base to eligible voters,” said panelist C. Robert Heath, author of “Evenwel v. Abbott: Redistricting and the Meaning of Political Representation,” who spoke favorably of the decision.

Heath has been involved in redistricting issues since 1971, and in that time has found that conservatives generally favor counting eligible voters for districting purposes, while liberals support tabulating total population, by far the most widely used method

Panelist Ben Griffith of Griffith Law Firm in Oxford, Miss., traced the history and legal course of racial gerrymandering and called for a more principled, predictable and factual analysis of these gerrymandering claims, which raise competing issues of racial identification and partisan political affiliation as principal drivers of the districting process.

Griffith, who has represented state and local government entities and private sector organizations in federal and state litigation for the past 41 years, emphasized the significance of the passing of Justice Antonin Scalia, and said that, based on his experience, “affirmance is going to be the result of a 4-4 Supreme Court” in districting cases until Scalia’s replacement is seated.

Panelists also spoke on other areas of concern.

“There are states with new election laws on the books since the last federal election and since the Supreme Court dismantled the Voting Rights Act,” said panelist Nicole Austin-Hillery of the Brennan Center for Justice, referring to the High Court’s decision in Shelby County v. Holder.

Indeed, 34 states have passed laws requesting or requiring voters to show some form of identification at the polls, although some later faced adverse court decisions, such as in North Carolina, Wisconsin, Texas and Kansas. Proponents see increasing requirements for identification as a way to prevent in-person voter impersonation. Opponents say there is little fraud of this kind, and the burden on voters unduly restricts the right to vote.

It is imperative that we pay close attention to how voters will be impacted by these changes, Austin-Hillery said.

Austin-Hillery noted that “despite the challenges presented by these changes, real reform that will help provide greater and more efficient access to the electoral system is under way at both the state and federal levels.” She said that 422 bills to enhance voter access have been introduced in state legislatures recently. Twenty-seven states and the District of Columbia are considering some form of automatic voter registration, as California and Oregon do.

Asking voters for an ID dates back to 1950 in South Carolina. Austin-Hillery said that her objection to voter IDs is not the requirement itself but the limited list of acceptable IDs that have been specified in such laws.

Austin-Hillery said that a Brennan Center study found in-person voter fraud to be virtually nonexistent, and that, before the recent court decisions, more restrictive voting laws were in effect with states accounting for 171 electoral votes.

Texas’ recently overturned law allowed a gun permit to be used as identification at the polls but not a college ID.