The Supreme Court is considering the role of federal courts in creating interim plans while a state redistricting plan awaits a preclearance decision under Section 5 of the Voting Rights Act. The dispute arises out of Texas’ current redistricting process. The Court heard oral arguments Monday on an expedited hearing schedule, so a decision is anticipated shortly.
Every 10 years, following a census, the federal government reviews population distribution across the country and, based upon a division of total population between total congressional seats, re‑allocates the appropriate number of congressional seats to each state. Any state may gain, lose or keep the same number of congressional seats in this process, depending on population growth or loss. Then, every state must redraw district lines for congressional and state legislative seats to satisfy the constitutional principle of “one-person, one-vote” in response to new population information. In 37 of 50 states, including Texas, the responsibility of drawing these lines falls to the legislature. Following the 2010 Census, Texas was allocated four additional congressional seats due to an increase of more than 4 million new residents, the overwhelming majority of which were Latino.
Due to a history of discriminatory voting practices, Texas has been under the jurisdiction of Section 5 of the Voting Rights Act since 1975. The Voting Rights Act obligates Texas to submit any election change, like its new redistricting plans, to the federal government for preapproval, or “preclearance,” through either the Department of Justice or the D.C. Circuit Court before any part of the redistricting plan may be enacted. In order for Texas to conduct elections in 2012, it needs to have redistricting plans in place no later than March so candidates have time to file for the primary election.
In July 2011, Texas finalized new redistricting plans for its state house, state senate, and Congress and submitted those plans to the D.C. Circuit Court for preclearance. The Department of Justice opposed preclearance, alleging the Texas legislative plan unfairly discriminated against minority voters. While the preclearance process was pending in D.C., plaintiffs filed different claims in federal court in San Antonio, TX, claiming the legislative redistricting plans violated federal law and the constitution. Because the San Antonio court could not know whether the legislative plans would go into effect until after the D.C. Court made a decision about preclearance, it stayed all action until the completion of the preclearance action.
In November 2011, the D.C. Court found that the Texas plans were not entitled to preclearance as a matter of law and ordered a trial on the merits. The San Antonio Court, noting that the D.C. Court could not finish its work in time for Texas to conduct its 2012 elections, ordered the parties to submit proposed plans so it could create interim plans to use for the 2012 elections. Then, the San Antonio court produced plans that were very different than the plans produced by Texas’ Republican-controlled legislature. In response, Texas filed a motion with the U.S. Supreme Court, asking the Court to intervene and stop the interim plans developed by the San Antonio Court from going into effect.
On December 9, 2011, five justices of the Supreme Court ordered the stay and an expedited hearing on the issue of whether the San Antonio Court interim plan should go into effect, which they heard Monday.
In considering this matter, the Court will weigh whether Section 5 of the Voting Rights Act retains its full force and effect by not allowing implementation of any non-precleared plan in whole or in part, or whether the San Antonio Court should have given greater deference to the Texas legislative plans – which have not been found to violate any state or federal law – in crafting interim redistricting plans.
Courts are frequently called upon to craft redistricting plans. But courts typically step in only after a state legislature or commission fails to complete the plan in time or after there is a legal finding that the state plan violated state or federal law and a court must draw a remedial plan. Here, the court in San Antonio acted to create an interim redistricting plan that differed significantly from a completed legislative plan that had not been found to be illegal. But because Texas’ legislative plans are under the jurisdiction of Section 5 of the Voting Rights Act, no part of the plan may be enacted until Texas achieves preclearance from the federal government.
There is legitimate concern that if the Supreme Court orders the lower court to show deference to the state legislative plan in crafting an interim solution, it will significantly undercut the ability of Section 5 to protect jurisdictions from redistricting plans that discriminate against minority voters. Moreover, such a decision could incentivize Section 5 jurisdictions to drag out the preclearance process with the intention that the non-precleared plans will serve as a benchmark for any interim plan until preclearance is granted or denied.
It remains to be seen whether the Supreme Court will uphold the full force of Section 5 and refuse to permit any deference to an unprecleared plan, or whether it will require courts placed in the position of drafting interim redistricting plans to show some degree of deference to legislative redistricting plans during the preclearance process. Arguably, if the Supreme Court was going to allow the interim plans to stand, five justices would have allowed the interim plans to go into effect rather than stay the order of the San Antonio court.
At oral argument the Justices expressed clear opinions about the sufficiency of the interim plan. Certainly the “progressive” justices suggested that the San Antonio panel did an appropriate job in crafting an interim solution. However, there was an unwillingness of the more “conservative” members of the court to find the Texas legislative plan void. Because the San Antonio Court crafted an interim plan, not a remedial one, and because there was no judicial finding of infirmity, the right-leaning side of the court certainly suggested that a legislatively enacted plan is entitled to deference. While the outcome is not certain, the entire Court appeared to accept that the constitutionality of Section 5 is not at issue in this case.
We expect that the Supreme Court will rule on this case quickly to ensure that Texas has new district lines in place for this year’s elections. The litigation in the D.C. Court and in San Antonio will continue, and legal determinations will be made as to whether the Texas district lines are legal under the Voting Rights Act and the U.S. Constitution. We can only wait to see what this will mean for the future of Section 5.
Recently, the Montana Supreme Court upheld the state’s ban on corporate independent expenditures. This is a direct rebuke of the U.S. Supreme Court’s decision in Citizens United v. FEC, which struck down a federal ban on corporate independent expenditures, largely based on the assumption that such spending inherently cannot corrupt elected officials.
The majority opinion in Citizens United, authored by Justice Kennedy, concluded that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption” and that “there is only scant evidence that independent expenditures even ingratiate.” But, thanks to a procedural quirk, the case shot up to the Supreme Court before anyone in the case could engage in any real fact-finding. So, Kennedy’s conclusion was little more than an untested hypothesis, not supported by any hard evidence.
When presented with evidence of corruption in a similar case, Justice Kennedy came to a totally different conclusion. Caperton v. Massey dealt with a West Virginia Supreme Court justice who failed to recuse himself from a case involving a CEO who spent nearly $3 million on independent expenditures in support of the justice’s election. Because the independent expenditures constituted the vast majority of spending in the judicial election, Justice Kennedy concluded that the justice should have recused himself because “no man is allowed to be a judge in his own cause, [and] similar fears of bias can arise when…a man chooses the judge in his own cause.”
Though Kennedy never said that the independent expenditures in Caperton had a potentially corrupting influence, “bias” and “corruption” are cut from the same cloth. Quite simply, a serious fact-based analysis of the role of independent expenditures in the West Virginia Supreme Court election led Kennedy to correctly conclude that large independent expenditures have just as much capacity to influence policymakers as a direct contribution — if not more.
Perhaps taking its cue from Caperton, the Montana Supreme Court engaged in a similarly thorough fact-based analysis of independent expenditures and reached a similar conclusion. Upholding the law, Justice McGrath argued that citizens adopted the law in a populist revolt against the “naked corporate manipulation” of the state — at that time, one mining company controlled “90% of the press in the state and a majority of the legislature.” Justice McGrath concluded that corporate money clearly corrupted Montana’s government before the adoption of the law and would do so again if permitted. McGrath and the other justices on the Montana Supreme Court (even those who dissented) tried to use fact-based analysis in order to expose the lack of factual basis for the Supreme Court’s conclusion in Citizens United that independent expenditures inherently cannot corrupt.
The recently concluded saga of the Republican Iowa caucuses provides more evidence than ever before of how strained the court’s rationale was in Citizens United. Candidate super PACs spent two-thirds of the $12.5 million worth of ads in Iowa under the legal illusion of non-coordination with the candidates. The plurality of those ads — 45 percent of all ads run in Iowa — came at the expense of Newt Gingrich, who once cheeredCitizens United as a “great victory for free speech.” Of course, where you stand depends on where you sit — Gingrich now complains of Super PACs, the progeny of Citizens United, "[T]hey have no responsibilities, they have no connection to any pattern of reasonable politics, and it’s a model I hope we can get beyond..."*
Gingrich’s about-face on campaign finance reform is cynical, but it represents a recognition by many that a Supreme Court ruling rooted in ideology rather than reality creates the potential for countless unintended consequences; consequences far more dire for our republic than a stymied Gingrich presidential campaign. The Montana Supreme Court decision — which the plaintiffs will appeal to the Supreme Court — is an opportunity for the Court to face facts and recognize the corrupting influence of corporate independent expenditures, just as it did in Caperton. Will it seize the day and save American elections? Stay tuned.
*This post previously attributed a quote to Newt Gingrich saying that “[c]ampaign finance law has made a mockery of our political campaign season.” The quote should have been attributed to Mitt Romney.
During his State of the State address, Governor Andrew Cuomo reaffirmed his commitment to clean up Albany, telling legislators he would send them a campaign finance reform bill that would include voluntary public financing of elections. The system would be modeled on New York City’s successful matching funds system which has increased the competitiveness of elections, diversity among candidates, and the participation of small donors.
In his written message, the governor called for additional campaign finance reforms, including lowering the state’s sky-high contribution limits, enacting pay-to-play rules, and improving the enforcement of campaign finance laws by creating a new enforcement unit at the Board of Elections. Given the recent corruption scandals involving elected officials and those seeking to do business with the state, this is a positive reform for New Yorkers that would reduce the dependence on money from special interests and help restore trust in state government.
The Brennan Center’s Michael Waldman appeared on NY1 and Capital Tonight to discuss the governor’s speech. "This exciting and vital proposal would make New York a national example of how to revitalize our democracy," Waldman said. "Meaningful campaign reform would curb corruption and boost accountability. It is the single most important next step to transform Albany. We welcome the Governor’s leadership on this issue and are looking forward to helping him make these reforms a reality."
I read a blog this morning about the pre-Christmas hysteria suffered by children fueled by unrestrained anticipation, constant media-driven red and green stimulation and naked greed. This year, I can relate. All I want for Christmas is for the Department of Justice to deny preclearance for South Carolina’s discriminatory voter ID law.
Every day I wake I wait for my Google Alert to tell me that the Department of Justice has denied preclearance for the no-photo, no-vote Voter ID law passed by South Carolina. The Brennan Center for Justice, along with the Lawyers’ Committee for Civil Rights Under Law, and the League of Women Voters of South Carolina led by the ACLU Voting Rights Project submitted two comment letters urging the Department of Justice to deny preclearance to South Carolina for this blatantly retrogressive law. During his speech at the LBJ Library, Attorney General Eric Holder implied that there might be something good in my proverbial stocking if our letter was very, very good and South Carolina’s law proves to be more naughty than nice. Like every child that wants to believe in Santa but is starting to suspect that the legend is too good to be true, I operate with a level of hopeful cynicism. anta Holder has not demonstrated a zeal for pushing back on efforts to undermine individual voting rights — will this Christmas be different?
The good people of Mississippi could represent the Grinch that may steal my Christmas. In November 2011, Mississippi voters passed a no-photo, no-vote constitutional amendment. I worry that this administration, for good reason, may not have the political will to refuse to preclear a state constitutional amendment that was passed by popular vote. But if they deny preclearance to South Carolina and Texas and reject their new laws, there is no clear, principled reason not to deny preclearance to Mississippi’s constitutional amendment — but a strong political talking point in the fact that Mississippi’s amendment was approved by a direct popular vote. Will this political problem make it harder to deny preclearance to these disenfranchising laws in other states and ruin my Christmas?
But I hope that the elves at the Department of Justice can see that there’s a clear political difference between a law passed by popular vote and one passed by a partisan legislature. Even if they are inclined to preclear Mississippi’s no-photo, no-vote voter ID law, it need not affect the determination that both Texas’ and South Carolina’s voter ID laws are retrogressive and discriminatory.
Every day my fear of proverbial coal in my stocking grows. Please, Santa Holder, make it a very Merry Christmas season.
Last week, Paul Schurick, the campaign manager for former Maryland Governor Robert Ehrlich, was convicted of two counts of conspiracy to violate election laws and two counts of election fraud for orchestrating a scheme of robo-calls intended to deter 100,000 Democratic African-American voters from voting in the City of Baltimore and Prince George's County Maryland.
The robo-calls, delivered in a woman's voice, assured Democratic voters that the Democratic Governor Martin O'Malley had already won the election as of 6:00 p.m. on Election Day 2010.
"Our goals have been met. The polls are correct and we took it back. We're OK. Relax. Everything's fine. The only thing left is to watch it on TV tonight."
At trial, Schurick argued his intention was to anger voters sympathetic to his candidate in order to motivate them to vote. A jury rejected his argument and found Schurick's intent was to mislead and discourage Democratic African‑American voters from going to the polls.
Schurick's conviction comes in the midst of a robust national debate about the importance of ballot security and how to protect American elections. Since January 2011, 15 states passed laws — with more legislation currently pending in Michigan, Minnesota, Pennsylvania and Virginia, among others — that burden individual voters by making it harder for citizens to register and to vote. These efforts range from eliminating early voting on Sunday, to making it more difficult for citizens to register, to requiring a specific kind of government-issued photo ID to vote. In almost all cases these laws are justified as a means to prevent voter fraud. This justification fails.
Simply put: these laws do nothing to prevent voter fraud, while putting up unnecessary barriers to the ballot for millions. Making it all but impossible for the League of Women Voters to register citizens in Florida — as a new law does — will not prevent someone who wants to submit a false registration form from doing so, but it could keep thousands from ever getting on the voter rolls. Eliminating days available for early voting will not keep supposed "fraudsters" from the polls, but it will affect the 1-2 million voters who used those early-voting days to vote in the 2008 elections. Requiring a driver's license, gun permit, military ID or passport to vote (while not allowing student IDs or public benefit cards) will not improve the security of our elections, but it may prevent the 3.2 million citizens without the right kind of photo ID from voting. All total, up to 5 million American citizens may be affected by these laws, with no evidence that any voter fraud will be prevented.
These new laws raise concerns for the 2012 presidential election. Five million votes is greater than the margin of victory in 2 of the last 3 presidential elections. Moreover, there are a total of 175 electoral votes controlled by the states that enacted laws imposing new restrictions on voting and voter registration for the 2012 election — equaling 65 percent of the 270 electoral votes needed to elect the next President.
Conversely, the "voter fraud" evangelicals ignore the very real problems created by voter deception. In a case before him in 2009, federal Judge Dickinson Debevoise found that voter intimidation tactics present an ongoing threat to participation in the political process" and continue to pose a far greater danger to the integrity of the process than the unproven and undemonstrated threat of voter impersonation and improper voter registration.
The distribution of misinformation about elections and voter eligibility undermines public confidence and discourages citizens from participating in the electoral process. Examples of voter deception include:
In 2002 in Louisiana, flyers in an African American neighborhood inaccurately told voters they would be able to vote three days after the election.
In 2004 in Ohio, flyers in Franklin County told voters that due to heavy voter registration, Republicans should vote on Tuesday and Democrats should vote on Wednesday.
In 2006 in Virginia, voters living in areas with large minority populations received calls incorrectly reporting that their polling places had changed.
In 2008 in Philadelphia, fliers posted near Drexel University incorrectly warned that police officers would be at polling places looking for individuals with outstanding arrest warrants or parking tickets.
In the 2006 midterm election, 14,000 Latino voters in Orange County, California received mailings from the California Coalition for Immigration Reform, warning them in Spanish that "if you are an immigrant, voting in a federal election is a crime that can result in incarceration" without reference to the fact that a naturalized immigrant may legally vote.
Other types of suppressive voter activity by political operatives or private citizens are:
Voter caging: efforts to identify and disenfranchise registered voters solely on the basis of an undeliverable mailing;
Voter intimidation: conduct that intimidates or threatens voters into voting a certain way or refraining from voting; and
Discriminatory or intimidating voter challenges: formal challenges to the eligibility of persons presenting themselves to vote either at the polls or prior to Election Day in a way intended to intimidate voters or in an intentionally discriminatory pattern.
Paul Schurick's conviction evidences the type of activity that is well-documented and clearly demonstrated to be a real problem.
Niomi Rosenberg, one of jurors from the Schurick trial said it best: "Suppression of the vote is a very big problem. Our country is founded on the right to vote."
Washington is mired in partisan gridlock, with the White House and Congress divided even on issues with broad public support. But hyper-partisan politics does more than just stop the legislative and executive branches from getting anything done. It also cripples the federal judiciary, one of the bedrocks of our democracy.
The latest egregious example came last week, when Republican senators filibustered the nomination of the eminently qualified Caitlin Halligan to the D.C. Circuit Court of Appeals. In blocking the nomination from going to the full Senate — where Halligan would have been confirmed by majority vote — Republicans ensured that a long-vacant seat would remain unfilled — and that the nation’s second most important court remained understaffed.
This is a problem across the federal bench: there are 80 vacancies on federal courts, including 29 in districts that have been deemed judicial emergencies. And while there are highly-qualified, experienced Americans waiting to fill those seats, shameful partisan tactics in the Senate have prevented confirmation votes on the nominees.
The slow pace of nominations in the Obama administration’s initial months in office certainly left much to be desired, and didn’t help the judicial crisis: by November of his first year in office, Obama had nominated only 26 judges — compared to the 64 nominations President Bush made in the same time frame.
But the administration has picked up the pace, and the lion’s share of blame for the current judicial logjam falls on the Senate. The president alone can’t staff the federal judiciary. Under the Constitution, no nominee can take a permanent seat on the bench without Senate confirmation. And this Senate has failed to act on countless highly-qualified individuals nominated by the president.
Because of those open seats, sitting judges are swamped by extra cases that should be handled by the judges slated to fill the vacancies. That means frustrating delays for the parties that depend on federal courts to resolve their cases.
Federal judges in Arizona are juggling a criminal caseload that has more than doubled in the past two years, while political gamesmanship in Washington kept Arizona’s bench short-staffed. Because of dilatory Senate tactics, veterans who risked the ultimate sacrifice defending our freedoms have had to wait several years to receive a final ruling on their eligibility for benefits from an overtaxed U.S. Court of Appeals for Veterans Claims. These examples, and countless others across the nation, have occurred because under Senate rules, a single senator can indefinitely hold a nomination from proceeding to an up-or-down vote.
A 2010 report from the Brennan Center for Justice illustrated how, over the last decade, Senate procedures have increasingly been used to prevent crucial decision-making — not to promote deliberation and debate, as the rules are designed to do. Nominees for crucial posts throughout the executive branch have been stalled by the Republicans’ cavalier use of the filibuster, but among the most damaging results of these tactics has been their impact on the federal bench.
During Obama’s first two years in office, only 62 of his 105 nominations were confirmed — the smallest percentage of judicial confirmations over the first two years of any presidency in American history. It’s not that the Senate has rejected his nominees as unqualified or inexperienced; the majority of individuals nominated by President Obama have ultimately been confirmed with little or no opposition during the floor vote.
Take, for example, Judges John Gibney, James Bredar, Catherine Eagles, and Kimberly Mueller. The Senate Judiciary Committee voted unanimously to approve their appointments to district courts in Virginia, Maryland, North Carolina, and California, respectively. But before they could take up the important work of hearing cases, these uncontroversial nominees spent more than eight months in confirmation purgatory, captive to obstructionist Senators using arcane procedural tactics to deny them up-or-down votes. All four were finally confirmed — by the unanimous consent of the full Senate.
Democrats aren’t blameless, of course. Under the last Republican president, they, too, used the threat of a filibuster as a strategic tool of obstruction. But a 2005 deal struck by a bipartisan group of senators — the so-called Gang of 14 — defused the last confirmation crisis. The agreement, which allowed a vote on any nominee except in the most “extraordinary circumstances,” recognized that holding qualified judicial candidates hostage doesn’t serve either party — or the country.
Unfortunately, in this hyper-partisan political moment, bipartisan common ground looks like a relic from the distant past. Led by Mitch McConnell, GOP senators walked away from the Gang of 14’s common-sense compromise. The resulting non-vote on Caitlin Halligan underscores just how dysfunctional our institutions of government have become.
The filibuster’s damage isn’t limited to grinding the legislative business of Congress to a halt. In Halligan’s case, the Senate’s archaic rules let an obstructionist party deny the nation the service of a highly qualified jurist. Partisan politics is imposing a tremendous burden on the ability of the federal courts to handle soaring caseloads.
In considering action on the 21 still-pending judicial nominees, patriotic Senators would do well to realize how the Senate’s inaction is compromising the judiciary’s constitutionally necessary ability to protect our liberties. Senate obstructionism is slowing the work of the courts to a crawl. Senators who delay justice, deny justice.
Last week, New Mexico Secretary of State Diana Duran released a November 16, 2011 “interim progress report” summarizing previous findings by her office raising issues with New Mexico’s voter registration database. Like her earlier testimony last March, in which she refused to release the underlying data for her claims, this interim report by Secretary Duran is vague on details and methodology, and it lacks citations. As a result, confirming or investigating the claims and conclusions of the report is nearly impossible. But based upon the findings of the interim report, problems with New Mexico’s voter registration systems appear to be a result of how the Secretary of State manages the voter registration lists and identifies errors. The report doesn’t demonstrate any clear evidence of intent to commit fraud.
In March 2011, Duran appeared at a hearing on “no-photo, no-vote” voter ID legislation claiming, among other things, that her office matched 117 voter registrations to people who had used foreign-national credentials to obtain driver’s licenses. In the newly-released interim report, Secretary Duran focused on the 117 people that her office found on both lists. The report identifies 85 individuals without any voting history and 13 individuals that lacked sufficient identifying information for her office to determine whether they were the same person that appeared on both lists. That leaves 19 people with the same name who appeared on both lists and who voted at some point following their registration.
Of the 19 voters who appeared on both the voter registration list and the foreign-national credentialed driver’s license list, Secretary Duran’s office identified nine people who voted prior to applying for a driver’s license using foreign national documentation. Secretary Duran does not, however, provide information on how she matched those nine persons between the lists. Given a large enough pool, a matching name and birthdate are not enough to ensure that it is the same person on both lists – at least not without using unique identifying numbers on both lists, which she did not do. Moreover, even an address check cannot avoid problems with duplication of name, missing suffixes or prefixes, or even errors in the pollbooks. For the remaining 10 voters who Secretary Duran identified as registered to vote and who voted sometime after obtaining a driver’s license with foreign-national credentials, it is important to note that in the initial review of the voter file, Secretary Duran compared voting records between 2003 and 2010. During that same period 13,205 New Mexico residents became U.S. citizens.The potential for overlap here is not accounted for in her allegations.
From the analysis the Secretary of State has presented, there have been a number of problems at the different levels of administration that handle voter registration forms. One of the complaints from the Secretary is the use of “dummy” social security numbers, as their system will not accept an application without a social security number and so some officials used other numbers and added zeros to override that feature. Correcting this problem would be a clear first step towards preventing further confusion in the state’s voting rolls. The Secretary blames provisions of the NVRA for encouraging non-citizens to register to vote by offering them a registration form at the DMV and when applying for public benefits. Both requirements have proven to be highly successful measures that have increased access to voter registration among eligible American citizens. If New Mexico can devise and follow more effective protocols for registering new voters, then people registering who are not eligible will not be an issue.
There are many ways that the processing of voter registrations can be improved, including modernizing voter registration to limit clerical and data errors that are common and allowing more shared information between state and election offices. By allowing less opportunity for administrative error, making voter registration rules and procedures clearer, implementing safeguards, and properly adding voters to the voter file, the types of problems identified by Secretary Duran’s interim report will be minimized. Secretary Duran has self-identified a number of areas where her office can help tighten up procedures, make forms and signage more clear for citizens and non-citizens alike, and eliminate problems with list maintenance. The practice of holding up unrelated allegations of voter fraud, vilifying non-citizens, and creating unnecessary work for law enforcement is not responsible policy-making – it’s rabble-rousing and it’s bad governance.
Secretary Duran has clearly identified multiple areas where her office can implement new policies, procedures and practices that would vastly improve the administration of New Mexico’s elections without imposing any new, unnecessary burdens on voters.
Just about everything everyone thinks they know about the history of gun rights is wrong. The National Rifle Association has been an implacable foe of gun control forever, right? Wrong. The NRA supported the first federal gun regulation in 1934. The Ku Klux Klan began as a group opposed to civil rights. No, it started as a gun control organization. And everyone knows the Wild West was just that — no man walked into a saloon without a six-shooter strapped to his hip. Wrong. Guns were checked with the local sheriff.
Last week, the Brennan Center held a fascinating conversation with Adam Winkler, author of the new book, Gunfight: The Battle over the Right to Bear Arms in America. Winkler, a professor at UCLA School of Law, has not only written a pioneering history of gun rights, but he challenges the bedrock assumptions of all partisans in the gun control debate. Winkler was questioned by Jeffrey Rosen, a professor at George Washington Law School and legal affairs editor of The New Republic. Their lively and provocative conversation lasts about an hour.
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