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Michael T Morley - One of the best experts on this subject based on the ideXlab platform.
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bush v gore s uniformity principle and the equal protection Right to Vote
Social Science Research Network, 2020Co-Authors: Michael T MorleyAbstract:The U.S. Supreme Court cautioned in Bush v. Gore that its “consideration is limited to the present circumstances.” Pointing to this admonition, many commentators predicted that, despite the case’s immediate impact in resolving the 2000 presidential election, Bush v. Gore would have little lasting effect on constitutional law. Two decades later, these predictions have proven incorrect. Bush v. Gore extended Equal Protection principles to the nuts-and-bolts aspects of election administration. The case established a Uniformity Principle that prohibits states from applying “arbitrary and disparate treatment” to different Voters participating in the same election. This Article explores the Uniformity Principle’s subsequent development over the ensuing two decades based on a personal examination of all 471 federal and state cases that cited Bush through June 30, 2020. Courts have applied Bush’s Uniformity Principle in three main contexts. First, they have generally invalidated laws that expressly require or allow materially different treatment of different groups of Voters participating in the same election. Second, courts have been almost as skeptical of laws that expressly delegate authority to county or municipal election officials to set substantial voting-related policies. In particular, they have been generally unwilling to allow different jurisdictions within a state to adopt different voting systems with substantially different error rates. Finally, courts have been skeptical of laws that establish vague standards that are subject to a range of conflicting interpretations by local officials in different municipalities or counties. This is especially true in challenges to the constitutional adequacy of states’ ballot-counting standards. In contrast, courts have been most resistant to applying the Uniformity Principle to selective restrictions on absentee and early voting, administrative “matching” requirements (including laws requiring election officials to determine whether a Voter’s information matches official records), and challenges involving the restoration of felons’ voting Rights. Citing a conflicting line of Supreme Court precedent from the Civil Rights Era, several courts have held that states are generally free to reduce barriers to voting and expand opportunities to Vote, even if they do so selectively, only for particular groups of Voters. In the years to come, a compelling need will likely arise for the Court to resolve the apparent conflict between these historic cases and the Bush Uniformity Principle.
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prophylactic redistricting congress s section 5 power and the new equal protection Right to Vote
Social Science Research Network, 2018Co-Authors: Michael T MorleyAbstract:The Voting Rights Act (VRA) has been an important mechanism for increasing participation by racial minorities in the electoral system. In recent years, however, the Supreme Court has demonstrated its willingness to reconsider the VRA’s constitutionality. Due to the broad prophylactic scope of section 2 of the VRA, two main developments pose risks to its continued validity. First, the Supreme Court narrowed Congress’s enforcement power under Section 5 of the Fourteenth Amendment in City of Boerne v. Flores, and is likely to interpret Section 2 of the Fifteenth Amendment similarly. Section 2 of the VRA features many key characteristics of statutes that the Court has held exceeded Congress’s Enforcement Clause authority. The Court may nevertheless preserve section 2 by applying it in light of traditional remedial principles governing prophylactic injunctive relief. Section 2 would fit comfortably within Congress’s authority if it were interpreted as prophylactically prohibiting constitutionally valid state laws, legislative maps, or other election-related measures only when those principles establish it is reasonably necessary to prevent violations of Fourteenth or Fifteenth Amendment Rights. Second, ongoing evolution in equal protection jurisprudence calls into question measures such as section 2 of the VRA that provide prophylactic protection for certain groups. The Court has historically adopted a “pro-voting” conception of equal protection under which laws protecting voting Rights only for certain people were generally upheld under rational basis scrutiny. Bush v. Gore laid the foundation for a “pro-equality” approach emphasizing that, because voting is a fundamental Right, any distinctions among people concerning the Right to Vote are subject to strict scrutiny and likely invalid. The ongoing shift from a “pro-voting” to “pro-equality” equal protection norm reflects the Court’s skepticism of legislative control over the electoral process, as well as its reformation of voting Rights from a purely political issue into a constitutional one. A “pro-equality” conception of equal protection enhances courts’ power to protect voting Rights while reducing the ability of Congress and legislatures to do so.
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remedial equilibration and the Right to Vote under section 2 of the fourteenth amendment
2015Co-Authors: Michael T MorleyAbstract:The modern “voting wars” involve repeated legal challenges alleging that procedures aimed at protecting the electoral process, such as proof-of-citizenship requirements for registration and Voter identification laws, violate the fundamental constitutional “Right to Vote.” In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting too burdensome. Section 2 of the Fourteenth Amendment offers critical, and previously overlooked, insight into the scope of the Right to Vote. It imposes a uniquely severe penalty — reduction in representation in the House of Representatives and Electoral College — when that Right is violated or abridged. "Remedial deterrence,” a crucial component of the broader theory of remedial equilibration, teaches that courts take into account the severity of the remedy for violating a legal provision when determining that provision’s scope. Stripping a state of its seats in Congress and Votes in the Electoral College is a uniquely severe penalty, effectively nullifying the results of one or more elections, disenfranchising the people who Voted for the ejected representatives, diluting the Vote of each member of the state’s electorate, and potentially even changing control of Congress or the outcome of a presidential election. For such a dramatic penalty to be appropriate, a State’s actions would have to be especially egregious: direct disenfranchisement of certain disfavored groups of people. Facially neutral registration or voting procedures with which a person must comply in order to Vote are insufficient to meet this highly demanding standard. This remedial deterrence interpretation of § 2 is consistent with both the Fourteenth Amendment’s legislative history and Congress’ contemporaneous interpretation of that provision during its first attempt at enforcement. All of the state laws and constitutional provisions that were identified in the 41st Congress as violating § 2 imposed additional qualifications for voting by disenfranchising entire groups of people, such as the poor, the illiterate, or racial minorities, due to their purportedly undesirable traits. A remedial deterrence interpretation of § 2 provides an objective and constitutionally-based approach for determining whether various election laws violate the Fourteenth Amendment Right to Vote.
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remedial equilibration and the Right to Vote under section 2 of the fourteenth amendment
The University of Chicago Legal Forum, 2015Co-Authors: Michael T MorleyAbstract:The modern "voting wars" involve repeated legal challenges alleging that procedures aimed at protecting the electoral process, such as proof-ofcitizenship requirements for registration and Voter identification laws, violate the fundamental constitutional Right to Vote. In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting too burdensome. Section 2 of the Fourteenth Amendment offers critical, and previously overlooked, insight into the scope of the Right to Vote. It imposes a uniquely severe penalty-reduction in representation in the House of Representatives and Electoral College-when that Right is violated or abridged. 'emedial deterrence," a crucial component of the broader theory of remedial equilibration, teaches that courts take into account the severity of the remedy for violating a legal provision when determining that provision's scope. Stripping a state of its seats in Congress and Votes in the Electoral College is a uniquely severe penalty, effectively nullifying the results of one or more elections, disenfranchising the people who Voted for the ejected representatives, diluting the Vote of each member of the Assistant Professor, Barry University School of Law. Climenko Fellow and Lecturer on Law, Harvard Law School, 2012-14; J.D., Yale Law School, 2003; A.B., magna cum laude, Princeton University, 2000. I was involved in some of the lawsuits discussed in this Article. Special thanks to the staff of The University of Chicago Legal Forum, as well as the participants at the Forum's annual symposium, the Loyola University Chicago School of Law's Constitutional Law Symposium, and the works-inprogress panel at the Federalist Society's annual conference, whose questions and comments were extremely useful in drafting and revising this piece. I am also grateful to Josh Chafetz, Terri Day, Dr. Ryan Greenwood, Daryl Levinson, Derek Muller, Eang Ngov, Richard Re, and Franita tolson for their guidance, feedback, and questions. I owe a special debt of gratitude to Dean Leticia Diaz of Barry Law School, whose generous winter grant subsidized the preparation of this piece; Louis Rosen of the Barry Law School library, who provided invaluable assistance in obtaining sources; and Briana Halpin, whose research assistance was excellent. I dedicate this article to my loving wife, Autumn Morley, without whose patience I could never have completed it.
Joshua A Douglas - One of the best experts on this subject based on the ideXlab platform.
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the Right to Vote under local law
Social Science Research Network, 2016Co-Authors: Joshua A DouglasAbstract:A complete analysis of the Right to Vote requires at least three levels of inquiry: the U.S. Constitution and federal law, state constitutions and state law, and local laws that confer voting Rights for municipal elections. But most voting Rights scholarship focuses on only federal or state law and omits any discussion of the third category. This article — the first to explore in-depth the local Right to Vote — completes the trilogy. Cities and towns across the country are expanding the Right to Vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. San Francisco, for example, will decide soon whether to lower the voting age to sixteen for its elections. This article highlights these developments, encourages local Voter expansions, and provides a test for courts to use when facing a judicial challenge to these rules. If states are “laboratories of democracy” that may experiment with social policies, then municipalities are “test tubes of democracy” that also can try out novel democratic rules, such as broadening the Right to Vote, on a smaller scale. Historically, some Voter expansions, such as the elimination of property requirements and the women’s suffrage movement, enjoyed early successes at the local level. Local voting Rights, then, can serve as catalysts for broader reforms as they “trickle across” to other municipalities and “trickle up” to states and Congress. As a matter of policy, local jurisdictions should enfranchise anyone who has a sufficient stake in local affairs and has the proper incentives and ability to make informed choices about who should lead them — which might include sixteen- and seventeen-year-olds, noncitizens (who are legal permanent residents), nonresident property owners, felons, or others. States with barriers to local voting laws, through substantive Voter qualifications or lack of “home rule” authorization to localities, should amend their state constitutional provisions or statutes. (An Appendix presents a 50-state chart on the possibility in each jurisdiction of enacting local voting laws.) Courts should defer to local laws that expand the Right to Vote as a means of local democracy, but should not defer to restrictions on the Right to Vote because limiting who may Vote harms the ideal of democratic inclusion. Robust protection of the Right to Vote depends on local voting rules as an early component of the reform effort. Enhanced local voting Rights will produce a more representative local government, create a habit of voting for various groups such as younger Voters that will ameliorate low turnout, and strengthen local democracy.
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state judges and the Right to Vote
The Ohio State Law Journal, 2016Co-Authors: Joshua A DouglasAbstract:State courts are paramount in defining the constitutional Right to Vote. This is in part because the Right to Vote is, in many ways, a state-based Right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the Right to Vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving Voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting Rights. When state courts issue rulings broadly defining the constitutional Right to Vote, they best protect the most fundamental Right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the Right to Vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting Rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional Right to Vote.
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the Right to Vote under state constitutions
Vanderbilt Law Review, 2014Co-Authors: Joshua A DouglasAbstract:This Article provides the first comprehensive look at state constitutional provisions explicitly granting the Right to Vote. We hear that the Right to Vote is "fundamental," the "essence of a democratic society," and "preservative of all Rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting Rights, especially because the U.S. Supreme Court has underenforced the Right to Vote. The answer, however, is Right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the Right to Vote, as contrasted with the U.S. Constitution, which mentions voting Rights only implicitly. Yet those seeking to protect the Right to Vote have largely ignored the force of state constitutions, particularly because many state courts "lockstep" their state constitutional voting provisions with the narrow protection the U.S. Supreme Court has afforded under the Fourteenth Amendment's Equal Protection Clause. This mode of analysis curtails the broader explicit grant of voting Rights in state constitutions.This Article explains why the lockstepping approach is wrong for the Right to Vote and advocates for courts to use a state-focused methodology when construing their state constitutions. It does so through the lens of recent Voter ID litigation, showing how the outcome of state constitutional challenges to Voter ID laws turns on whether the reviewing state court faithfully and independently applies the state constitutional provision conferring voting Rights. The textual and substantive differences between U.S. and state constitutional voting-Rights protections requires a state-focused methodology for state constitutional clauses that grant the Right to Vote. Article I, Section 2 of the U.S. Constitution points directly to state qualification rules to determine Voter eligibility. State constitutions explicitly confer voting Rights, while the U.S. Constitution merely implies the Right to Vote through negative language. In addition, the Right to Vote deserves the most robust protection possible, which is generally provided within state constitutions. The Article proposes a test for state courts to use when construing their constitutional voting Rights clauses: a court should hold a law that adds an additional Voter qualification beyond what the state constitution allows to be presumptively invalid; accordingly, courts should require a state to justify burdens on the Right to Vote with specific evidence tied to the legislature's authority under the state constitution. Finally, an Appendix presents a chart illustrating all fifty state constitutions and the language they employ for the Right to Vote.I. INTRODUCTIONWhat is the Right to Vote? This question has befuddled courts,1 law professors,2 historians,3 and policymakers4 for years. We hear that the Right to Vote is "fundamental,"5 the "essence of a democratic society,"6 and "preservative of all Rights."7 We know that voting is sacred. Yet we are still searching for a solution to the puzzle of how best to protect voting Rights.The answer, however, is Right in front of us: state constitutions. Virtually every state constitution confers the Right to Vote to its citizens in explicit terms.8 Moreover, the U.S. Constitution directs the inquiry over Voter eligibility to state sources.9 As Justice Scalia recently declared, the Elections Clause of the U.S. Constitution "empowers Congress to regulate how federal elections are held, but not who may Vote in them."10 Voter eligibility rules are leftinstead to the states. But state courts, much like federal courts, have largely underenforced the Right to Vote because they have too closely followed federal court voting-Rights jurisprudence. A renewed focus on the power of state constitutions provides the answer for how best to protect the fundamental Right to Vote.The year 2012 may go down as the year of Voter ID. Courts considered various aspects of challenges to new requirements that Voters show a photo identification to Vote in Pennsylvania,11 Wisconsin,12 Tennessee,13 Texas,14 and South Carolina. …
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the Right to Vote under state constitutions
Social Science Research Network, 2013Co-Authors: Joshua A DouglasAbstract:This Article provides the first comprehensive look at state constitutional provisions explicitly granting the Right to Vote. We hear that the Right to Vote is “fundamental,” the “essence of a democratic society,” and “preservative of all Rights.” Yet courts and scholars are still searching for a solution to the puzzle of how best to protect voting Rights, especially because the U.S. Supreme Court has underenforced the Right to Vote. The answer, however, is Right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the Right to Vote, as contrasted with the federal constitution, which mentions voting Rights only implicitly. And yet those seeking to protect the Right to Vote have largely ignored this state constitutional source. This is because many state courts “lockstep” their state constitutional voting provisions with federal jurisprudence of the Right to Vote under the Fourteenth Amendment’s Equal Protection Clause, following the U.S. Supreme Court’s lead in curtailing Voter protections. The article explains why this lockstepping approach is wrong for the Right to Vote and advocates for courts to use a state-focused methodology when construing their state constitutions. It does so through the lens of recent Voter ID litigation, showing how various state courts have differed in determining whether Voter ID laws are constitutional based on whether the courts faithfully apply the state constitutional provisions conferring voting Rights. The federal-state structure of voting Rights protections requires a state-focused interpretation for state constitutional clauses that grant the Right to Vote. First, Article I, Section 2 of the U.S. Constitution points directly to state qualification rules to determine Voter eligibility. Second, the textual and substantive differences between federal equal protection voting Rights jurisprudence and state constitutional grants of the Right to Vote counsel toward a state-first methodology. The article also proposes a test for state courts to use when construing their constitutional voting Rights clauses: a law that adds an additional Voter qualification beyond what the state constitution allows is presumptively invalid, and a state must justify burdens on the Right to Vote with specific evidence tied to the legislature’s authority under the state constitution. Finally, an Appendix presents a chart illustrating all fifty state constitutions and the language they employ for the Right to Vote.
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is the Right to Vote really fundamental
Cornell Journal of Law and Public Policy, 2008Co-Authors: Joshua A DouglasAbstract:This Article poses a question at the core of our democracy: Is the constitutional Right to Vote a fundamental Right? The answer, surprisingly, is “not always.” For over forty years, the Supreme Court has fostered confusion surrounding the Right to Vote by creating two lines of election law cases. In one breath the Court calls the Right to Vote fundamental and applies strict scrutiny review. In another, the Court fails to recognize the Right as fundamental and uses a lower level of scrutiny. These two lines of cases have coexisted, leaving lower courts and litigants with little guidance on how to approach future election law disputes. The problem inherent in this approach is that it derogates the value of having an individual Right to Vote and poses significant questions about the efficacy of our notion of democratic self-governance. The Court’s most recent attempt in Crawford v. Marion County Election Board, the Voter identification case, muddled this question even further. With Crawford as a background, this Article closely examines the Court’s inconsistent approaches for construing the Right to Vote. After delineating the negative implications of this fractured methodology, the Article proposes a two-part solution: first, courts should distinguish between cases that directly impact Voters from disputes involving indirect burdens on individuals. Regulations involving direct burdens on individuals—such as laws about the value of one’s Vote or who is eligible for the franchise—impact the fundamental Right to Vote and deserve strict scrutiny review. Second, courts should customize the approach to strict scrutiny for election law disputes, with an added focus on the narrowly tailored prong, so as to recognize the value of the Right to Vote while still allowing states to ensure fairness through their election regulations. Thus, instead of grasping for an overarching principle that would bring a semblance of unity to all election law cases, the Article suggests that courts approach the Right to Vote differently depending on
Michael Hurta - One of the best experts on this subject based on the ideXlab platform.
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counting the Right to Vote in the next census reviving section two of the fourteenth amendment
Texas Law Review, 2015Co-Authors: Michael HurtaAbstract:(ProQuest: ... denotes formulae omitted.)IntroductionWhen the Congressional Research Service authored its centennial edition of constitutional analysis and interpretation, it called Section Two of the Fourteenth Amendment a "historical curiosity."1 What makes Section Two most curious, however, is not its historical insignificance but its over-looked contemporary value. Properly understood, Section Two remains an important tool to enhance voting Rights in the United States. When read in light of current federal law, Section Two may make the ministerial Census Bureau one of the most powerful guardians of voting Rights within the federal government.Section Two sets forth a standard for congressional apportionment and penalizes states that disenfranchise certain citizens. States that deny or abridge the Right to Vote of enough citizens should lose apportioned congressional seats:Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the Right to Vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.2Put simply, states that deny or abridge the Right to Vote of any voting-age citizens-for any reason other than the citizens' rebellion or crimes- shall have their bases for apportionment reduced according to the percentage of such citizens whose Right to Vote has not been burdened.3But the penalty has never been imposed. The rare attempts to carry out the new apportionment standards were rebuffed;4 Congress and the courts continuously fail to act.5 Yet the penalty would have serious consequences if enforced. A state would not only lose representation in Congress but would lose electoral Votes for President.6 With a punishment so severe, Section Two should be the opposite of a curiosity.Voting Rights activists typically rely on other constitutional and statutory provisions to protect the Right to Vote, but observers recently began worrying about a conservative Supreme Court's impact on this strategy.7 And in Shelby County v. Holder,8 the Court rendered inoperative a major mechanism of the Voting Rights Act,9 causing scholars to explore other potential protections to the Right to Vote.10 The practical impact was clear: jurisdictions began restricting access to the ballot in ways that the Voting Rights Act previously prevented11 and the legal space to improve voting Rights became much more limited than it once was.12 In light of recent events, this Note reiterates the crucial role that Section Two can properly play in protecting voting Rights.This Note is hardly the first to argue for Section Two's enforcement, but academic arguments for its broad implementation were largely constrained to the Civil Rights Era of the 1960s.13 This Note builds on the work of predecessors-particularly George Zuckerman, who examined Section Two's history and concluded that the Census Bureau was best positioned to enforce it and discourage the denial of voting Rights.14 Zuckerman's conclusions are still persuasive, but this Note necessarily reexamines the value of Section Two in light of a modern elections landscape that lacks literacy tests, direct poll taxes, or similarly high voting burdens.15 Further, the Secretary of Commerce (through the Census Bureau) and the President actually have the authority and duty to enforce Section Two, so Zuckerman's policy proposals can be initiated today. …
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counting the Right to Vote in the next census reviving section two of the fourteenth amendment
Social Science Research Network, 2015Co-Authors: Michael HurtaAbstract:The Constitution’s first mention of the “Right to Vote” has never been used to protect that Right. But Section Two of the Fourteenth Amendment should be enforced to protect the Right to Vote in ways that no other laws can. Section Two would punish states’ congressional apportionment when the Right to Vote is denied or abridged for a significant number of any of the states’ citizens. Most scholarship advocating for Section Two’s general enforcement occurred in the 1960s, before the accomplishments of the Voting Rights Act and development of modern Equal Protection Clause jurisprudence. Yet, the Section Two penalty would deter states from passing Voter restrictions that are apparently legal today. The history of the Fourteenth Amendment’s passage tells little about how Section Two applies in the 21st Century, but the breadth of Section Two is clear; it affects all states during apportionment and applies to voting restrictions of almost any type. So, Section Two is potentially the broadest Voter protection available, as it does not contain the specific limitations of other laws (such as the Fifteenth Amendment, which only protects from Voter restrictions made “on account of race or color”). Because Section Two’s penalty occurs during apportionment, it should be enforced by the principle facilitator of the decennial apportionment: the United States Census Bureau, which already has the authority to enforce the section. The Census Bureau may be a ministerial agency, but in following the mandates of the Constitution it should become one of the country’s more important protectors of the Right to Vote.
Joel Heller - One of the best experts on this subject based on the ideXlab platform.
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fearing fear itself photo identification laws fear of fraud and the fundamental Right to Vote
Social Science Research Network, 2009Co-Authors: Joel HellerAbstract:While proponents of photo identification laws generally say that such requirements are necessary to prevent in-person Voter fraud, they have also argued that the laws are necessary to address Voter fear that fraud is occurring at the polls. Indeed, states have made this argument even in the absence of any evidence of actual in-person Voter fraud.The Court has yet to evaluate a voting law that uses fear as a rationale under heightened scrutiny, as the law in Crawford v. Marion County Election Board survived a deferential level of review. As such, courts have not yet had occasion to determine if a state’s interest in addressing fear of fraud is compelling. Yet a challenge that successfully triggers more exacting scrutiny is foreseeable. And unless states have significantly greater success than in previous cases in gathering evidence of in-person Voter fraud, they will not be able to rely upon an interest in addressing actual fraud to survive heightened scrutiny. As such, the nature of the state’s interest in addressing fear of fraud will likely constitute the major focus of the case.Freedom from fear is not a fundamental Right, but the Right to Vote is. to justify the acceptance of Voter fear as a rationale for lawmaking, and to safeguard the fundamental Right to Vote, courts must articulate the legal principles behind this argument and establish a generally applicable standard for the evaluation of such laws. This Note proposes an outline for such a standard and presents several questions that a court should ask when evaluating laws that deny or abridge the Right to Vote based on fear.
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fearing fear itself photo identification laws fear of fraud and the fundamental Right to Vote
Vanderbilt Law Review, 2009Co-Authors: Joel HellerAbstract:I. INTRODUCTION In his first inaugural address, President Franklin Roosevelt assured the American people that "the only thing we have to fear is fear itself."1 President Roosevelt's famous statement begs the question, however, of why we should fear fear itself. What, or whom, does fear harm? When faced with the presence of fear, society must consider what steps it is willing to take and what it is willing to give up in order to address that fear. These considerations become particularly acute when the government uses the existence of fear as a rationale for legislation. The propriety of fear-based lawmaking is questionable, since fear is often unreasonable, malleable, and vague.2 This debate has recently arisen in the context of state laws that require individuals to present photo identification in order to Vote. While proponents generally say that identification requirements are necessary to prevent in-person Voter fraud, they have also argued that such laws are necessary to address Voter fear.3 Without photo identification laws, proponents contend, Voters will fear that fraud is occurring at the polls. Indeed, states have made this argument even in the absence of any evidence of actual in-person Voter fraud.4 In Crawford v. Marion County Election Board, the Supreme Court accepted the State of Indiana's argument that addressing fear of fraud is a state interest with "independent significance" apart from the interest in halting actual fraud.5 In dicta in Purcell v. Gonzalez, the Court likewise expressed approval of laws designed to calm "[v]oters who fear their legitimate Votes will be outweighed by fraudulent ones."6 The Court has yet to evaluate a voting law that uses fear as a rationale under heightened scrutiny, as the law in Crawford survived a deferential level of review.7 As such, courts have not yet had occasion to determine if a state's interest in addressing fear of fraud is compelling. Indeed, courts presently lack an analytical framework for making such a determination. Yet a challenge that successfully triggers more exacting scrutiny is foreseeable; indeed, Crawford provides several hints of the shape such a challenge could take.8 Unless states have significantly greater success than in previous cases in gathering evidence of in-person Voter fraud, they will not be able to rely upon an interest in addressing actual fraud to survive heightened scrutiny. As such, the nature of the state's interest in addressing fear of fraud will likely constitute the major focus of the case. Fear in the photo ID context is particularly problematic, since such laws completely deny the Right to Vote to one group of legitimate Voters - individuals without a photo ID, who are typically indigent, elderly, or members of minority populations9 - in order to calm the fears of another group of Voters. Measures that ensure confidence in the electoral system are important, but their salutary effect must be balanced against the burdens they create. Freedom from fear is not a fundamental Right, but the Right to Vote is.10 A framework for evaluating fear -based election laws is thus necessary not simply to prepare courts for a foreseeable controversy but also, and more importantly, to safeguard the fundamental Right to Vote. While this problem is implicated any time the state uses fear to tighten its Voter requirements, the risk of disenfranchisement is more acute when the requirement is a photo ID, since such IDs are often particularly difficult to obtain.11 In addition, states have so far made the fear argument most prominently in the photo ID context. Decisions such as Crawford seem to be based on judicial assumptions that fear is a sufficiently serious harm to serve as a legitimate target of legislation. to justify their acceptance of Voter fear as a rationale for lawmaking, and for the sake of consistency and manageability, courts must articulate the legal principles behind such decisions and establish a generally applicable standard for the evaluation of such laws. …
Lani Guinier - One of the best experts on this subject based on the ideXlab platform.
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free at last rejecting equal sovereignty and restoring the constitutional Right to Vote shelby county v holder
Social Science Research Network, 2014Co-Authors: James Uriah Blacksher, Lani GuinierAbstract:The "equal sovereignty" principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that black Americans, slave or free, were not members of the sovereign people and could never be "citizens" within the meaning of the Constitution. Otherwise, he said, blacks would be entitled to all the fundamental Rights of citizenship guaranteed by the Privileges and Immunities Clause of Article IV, Section 2, including the Right to Vote, a result that would violate the equal sovereignty of the slave states. Black people, Chief Justice Taney wrote, could only enjoy those Rights the sovereign people of each state chose to give them. The Dred Scott decision was one of the provocations that led to the Civil War and to the adoption of the Reconstruction amendments to the Constitution. Section 1 of the Fourteenth Amendment, ratified in 1868, overruled Dred Scott’s holding that freedmen and their descendants were not citizens, and it prohibited the states from abridging "the privileges or immunities of citizens of the United States." Section 5 of the Fourteenth Amendment gave Congress the power to enforce the Privileges or Immunities Clause. But black voting Rights were unpopular in the northern states, as well as in the South. Referendums on black suffrage had been defeated in many northern states in 1867, including Ohio, Kansas, and Minnesota. So the drafters of the Privileges or Immunities Clause had to concede, at least for the time being, that it did not guarantee the franchise. Instead, they placed in Section 2 of the Fourteenth Amendment a threat to reduce Congressional representation for states who denied the franchise to any of its "male inhabitants." The Reconstruction Republicans forced the former Confederate states, still under military rule, to enfranchise blacks as a condition for being readmitted to Congress. Then in 1870 they adopted the Fifteenth Amendment, which prohibited denying or abridging the Right to Vote on account of race. The door was left open, however, for a future Congress to give the Privileges or Immunities Clause its plain meaning by enforcing the Right to Vote of every American citizen.The Supreme Court moved immediately to close the door to such future Congressional action by judicially neutering the Privileges or Immunities Clause. The 1873 Slaughter-House Cases reaffirmed Dred Scott’s holding that power to define the fundamental Rights of citizenship belonged to the states, not to the federal government. A year later, in Minor v. Happersett, the Court rejected the claim of women suffragists that the Fourteenth Amendment Privileges or Immunities Clause guaranteed them the franchise. The Constitution does not give anyone the Right to Vote, the Court said.The former slave states wasted little time taking the Court’s cue. By the turn of the century they had disfranchised their black citizens and had openly established regimes of white supremacy that racially segregated nearly all aspects of life in the South, without fear of penalty by a Congress engaged in reconciling whites North and South. In a 1903 opinion written by Justice Oliver Wendell Holmes, the Supreme Court told blacks in Alabama the federal courts were powerless to restore their Right to Vote.African Americans remained disfranchised in the South until, through generations of bloody sacrifice, they finally got Congress to use its power to enforce the anti-discrimination provision of the Fifteenth Amendment and pass the Voting Rights Act of 1965. At first the Supreme Court upheld Congress’ authority to enact and to re-enact the Voting Rights Act, but eventually it began to push back. Now, in Shelby County, a five-four majority has struck down the coverage formula in the 2006 amendments to the Voting Rights Act, relieving the Southern states from having to obtain federal preclearance before implementing changes in their voting practices. But, by invoking the unwritten doctrine of "equal sovereignty," Chief Justice John Roberts’ opinion for the Court forces us to revisit the racially discriminatory origins of that doctrine and its role in undermining the Privileges or Immunities Clause.The authors argue that the appropriate response by Congress to Shelby County would be reasserting its explicit constitutional authority to interpret the Privileges or Immunities Clause. Adoption of the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments and the Court’s repeated acknowledgment of a constitutional Right to Vote have effectively overruled the Slaughter-House Cases and Minor v. Happersett. The American people of the twenty-first century should demand that Congress enact statutes expressly proclaiming what no one today can deny, that the Right to Vote is the paramount privilege or immunity of citizenship in the United States. Congress should exercise its Fourteenth Amendment power to enforce the Privileges or Immunities Clause and begin establishing uniform national standards for the administration of all elections, federal, state, and local, that guarantee full access to the franchise for all American citizens.The 2006 Voting Rights Act had special constitutional stature; it was the first voting Rights law in American history passed with the participation of African-American members of Congress from every one of the former Confederate states. Its re-enactment based on Congressional authority to enforce the Right to Vote under the Privileges or Immunities Clause, rather than on the anti-discrimination provisions of the Equal Protection Clause and the Fifteenth Amendment, would render irrelevant the Supreme Court’s call for comparing the states’ current records of voting discrimination. It would emphatically repudiate the racially tainted equal sovereignty principle relied on in Shelby County and finally renounce the legacy of Dred Scott by proclaiming African-American citizens’ full membership in the sovereign people of the United States.
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free at last rejecting equal sovereignty and restoring the constitutional Right to Vote shelby county v holder
Harvard Law and Policy Review, 2014Co-Authors: James Uriah Blacksher, Lani GuinierAbstract:The Supreme Court’s decision in Shelby County v. Holder1 revitalizes the oldest and most demeaning official insult to African Americans in American constitutional history. Written by Chief Justice Roberts, the majority opinion relies on an unwritten principle that Roberts calls states’ “equal sovereignty” to justify the Court’s decision to topple a landmark piece of legislation: Section 4 of the Voting Rights Act (hereinafter Section 4).2 Chief Justice Roberts fails, however, to acknowledge the origin story of this “equal sovereignty” principle, which can be traced back to the Court’s infamous decision in Dred Scott v. Sandford.3 Shelby County is the first decision since Dred Scott to invoke the doctrine of equal sovereignty where the Right to Vote was involved. And, once again, just as the Court did in Dred Scott, the Court in Shelby County held that the “equal sovereignty” of the State of Alabama takes precedence over Congress’s exercise of its explicit constitutional power to enforce the voting Rights of the descendants of slaves. Writing for the majority in Dred Scott, Chief Justice Taney held that black persons—slave or free—were not citizens, as they were not members of the sovereign people who founded the United States and enacted the Con-
