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Voting Rights & Elections
By Justin Levitt – 07/01/09
Consensus among Texan legislators
on election issues is becoming - stated generously - vanishingly
rare. In 2007, a firestorm over voter ID proposals grew so acrimonious
that a State Senator rallied to block proposed legislation, despite
the fact that he was
recovering
from a liver transplant
and needed a hospital bed to be kept about 100 feet from the Senate
floor. Two years later,
sparring over a new proposal drove marathon
hearings running for
23
hours straight.
This general climate makes H.B. 1457 nothing short of a wonder. It
passed the State House 144-1. It passed the State Senate 31-0. Bipartisan, near-unanimous
support - until it was shot
down last week
by Governor "Rick" Perry's veto. Its demise is a shame, for
Texans of all stripes.
The bill was a common-sense
attempt to address administrative flaws that cost Texan election officials
time, Texan taxpayers money, and Texan citizens the right to vote.
The federal Help America Vote Act asks each state to try to match the information on new voter registration
forms to data in the motor vehicles or Social Security systems.
Under the federal law, when the system can't find a match, voters
who mailed in their forms are flagged, and have
to show ID before
they vote. Texas
went a bit farther,
requiring every new voter with a failed match (whether registering by
mail or not) to show ID, after required correspondence back and forth.
The biggest problem with the
system is that the matching system isn't very sophisticated, and simple mistakes
or inconsistencies cause the match
to fail.
A lot. When a data entry temp hits the wrong key, the match can
fail. When a voter has a compound name, like "Mary Ann Smith"
or "Linus van Pelt," the match can fail. When a voter uses
a nickname, like "Bill," or a middle name, like "F. Scott,"
the match can fail. The
motor vehicles match does better than
the Social Security version,
and some clerks catch mistakes more often than others. Still,
the matching problems add up. In 2008, the match failed, nationwide,
about 30%
of the time.
Most of these common matching
errors have nothing whatsoever to do with the eligibility of the person
trying to register. But the errors do take time to resolve, and
cause hassles for both county clerks and voters. So Rep. Scott Hochberg, an engineer who understands both
the capacity and the limits of technology, tried to reduce the impact
of the mistakes. His
bill asked the
Secretary of State to come up with reasonable standards for deciding
when the name submitted by a local registrar was actually the same person
on motor vehicle records, and for sending mismatched information back
to registrars to help them resolve discrepancies. It also asked
the registrar to give rejected applicants as much information as possible,
to help them resolve problems. Simple, common-sense stuff
- which explains why 99.4% of legislators agreed.
Gov. Perry, unfortunately,
thought differently. His primary excuse for the veto was that a slight mismatch
"is a strong indication that the application was filled out by someone
other than the rightful voter."
"Rick," of all people,
should know better.
Never mind logic, which points
in exactly the other direction. Attempted fraudsters - many of whom
copy phone book records in
order to get paid
for registration canvassing they don't actually do - have no idea
what a particular voter's driver's license number is, and don't
come close when they scribble something random down. Slight and
readily identifiable mistakes in a name or birthday, on the other hand,
are a "strong indication" that someone hit the wrong key when typing.
Like when Gov. Perry discussed "indentifying" information in his veto message.
The logical assumption is that Gov. Perry's clerical assistant screwed
up - not that some fraudster faked the veto.
And never mind facts, which
point in exactly the other direction. In two federal cases now, the overwhelming evidence has
been that, as one election official recognized, "Most times the [voter's
registration] record is unable to be verified because of a data entry
error at the time of input (i.e., misspelled names and number transpositions)."
No, Gov. Perry should have
recognized that mismatches don't usually indicate fraud, because his
own registration application would likely have been mismatched.
See, "Rick" Perry is actually "James
Richard" Perry.
And though I don't know what name Gov. Perry uses on his driver's
license, his Social Security Administration records almost certainly
reflect the name he was first given.
175 of 176 Texas legislators
thought that their Secretary of State should be able to issue common-sense
rules to decide when it's sufficiently clear that Rick Perry is actually
James Richard Perry. It is a real shame for Texans that James
Richard disagreed.
Tags: Voting Rights & Elections, Voter Lists and Databases, Voter Registration
By Myrna Pérez – 06/29/09
"The historic accomplishments of the Voting Rights Act are undeniable. "
--Chief Justice Roberts, NAMUDNO v. Holder
Last week, the Supreme Court avoided a constitutional challenge to a critical component of the Voting Rights Act by a small utility district in Austin, Texas in the case NAMUDNO v. Holder. This ruling is an important one because it rightly left the Voting Rights Act, probably the nation's most successful piece of civil rights legislation, fully intact and capable of performing the important duties with which it was tasked, namely that of fighting racial discrimination in voting.
As the Court recognized, the Voting Rights Act is responsible for much of the progress we have achieved towards equality in voting. Literacy tests, grandfather clauses, "good character tests"-all were made illegal by the Voting Rights Act. Other provisions, like the one at issue in the NAMUDNO case, required that certain jurisdictions, those which have had demonstrable histories of discrimination in voting, seek "pre-clearance" or certification in advance from the Department of Justice or a court that certain proposed changes to their election systems would not have a negative effect on the voting rights of racial and ethnic minorities.
The Voting Rights Act, while important for our country's future, also plays an important role in our past because the Voting Rights Act is our greatest legacy to the 15th Amendment. At the beginning of 1867, a few years before the 15th Amendment was passed and ratified, there were no federal laws guaranteeing the voting rights of any African-American males. But before 1868 ended, all that had changed. In 1867, the Reconstruction Congress passed legislation enfranchising African-American males in the District of Columbia, overriding a presidential veto in opposition. Within the same month, Congress overrode a second presidential veto and passed legislation giving African-American men the right to vote in other geographic areas subject to federal control. A few weeks later, Congress conditioned the Territory of Nebraska's admission into the Union upon abolish all racial qualifications on voting. Most significantly, in the First Reconstruction Act, Congress refused to re-admit the former Confederate states into the Union unless the states amended their constitutions to allow voting by male citizens "of whatever race, color, or previous condition" and required that these states not amend their constitutions in the future to deprive any citizen or class of citizens the right to vote.
So before the 15th Amendment was passed, Congress had already formally enfranchised African Americans in the former confederacy and the federally-controlled territories. But the Reconstruction Congress knew that those acts were not sufficient for a right as fundamental as the right to vote. A constitutional amendment was needed to make sure the gains that had been achieved were not rolled back by circumvention (such as private or state-sanctioned violence or intimidation) or future electoral majorities with discriminatory inclinations. And so, the Reconstruction Congress passed, and the states ratified a 15th Amendment designed to prevent backsliding and to ensure a continuing role for Congress in the eradication or racism in voting. It was broad in its scope in that it gave Congress wide latitude, but narrow in its focus in that it covered only where racial discrimination intersected with voting. The 15th Amendment's opponents balked about the shift the Amendment created in the relationship between federal and state governments by transferring to the federal government primary responsibility for electoral qualifications related to race, an area that had been once left exclusively to the states, but the Amendment's proponents stood firm that the Amendment had to bestow upon Congress the power to combat racism in voting in the future. After the Amendment passed, Congress utilized this power to pass Enforcement Acts after the 15th Amendment that were broad and expansive, and an anti-Klu Klux Klan Act -- all reflecting Congress' intention that its powers be at their zenith when it was protecting racial minorities from discrimination in voting.
Congress' broad and bold actions were squashed by the Supreme Court, which issued rulings emasculating the strength of the Enforcement Acts. For almost 75 years, the nation slipped into Jim Crow. We might still be there if Congress had not acted again under its broad 15th Amendment powers to enact the Voting Rights Act of 1965. The Voting Rights Act seeks to protect, as did the 15th Amendment, current exercises of the right to vote, but also like the 15th Amendment, it seeks to ensure that voting rights are not curtailed by future state behavior. This is done in large part by the "pre-clearance" provisions at issue in the NAMUDNO case, which does not allow proposed state changes to their election practices to be implemented until it can be certified that the change will not have a negative effect on the voting strength of a racial group.
The Voting Rights Act effectively revived Congress' role in combating racism in voting from the dormancy it was cowed into by the Supreme Court. And Congress amended and reauthorized the Act. Most recently, in 2006, after reviewing voluminous evidence of present-day discrimination and holding extensive hearings, Congress made the near-unanimous policy determination that there still remained work for the Voting Rights Act and its pre-clearance provisions to do and that the Act should be reauthorized.
The Act is a modern-day rejection by our country of racism in voting, and I for one am proud that our elected representatives made such a statement.
In the case, the utility district, named the Northwest Austin Municipal Utility District (and from where the acronym "NAMUDNO" comes from in the case name), argued that it should be allowed to seek a statutory exemption from the Act's pre-clearance provisions that affected the entirety of the state of Texas. NAMUDNO further argued that if it were not entitled to the statutory exemption, then the Voting Rights Act must be struck down as an unconstitutional intrusion of Congressional power into state sovereignty.
Eight Justices concluded that NAMUDNO should be allowed to "bail-out"-the term used for a jurisdiction which seeks exemption from the pre-clearance provisions - leaving Justice Thomas standing alone in his argument that the Court should have struck down the relevant sections of the Voting Rights Act today.
There is no doubt that the decision is a victory for voting rights, especially because the activists who recruited NAMUDNO for the challenge sought wholesale destruction of the Act's pre-clearance provisions. But the decision was what lawyers would call a "narrow" ruling. Because a majority of Justice concluded that NAMUDNO was entitled to the exemption, the Court did not need to decide whether the pre-clearance provisions were a constitutional exercise of Congressional power. While the decision does not foreclose future challenges to the constitutionality of the Act, if and when they come, the Court should remember that the 15th Amendment amply and clearly supports giving Congress much deference in its determinations as to how to best combat race discrimination in voting and the power to take the steps to effectuate that determination.
Tags: Democracy, Voting Rights & Elections
By Garima Malhotra – 04/28/09
Last Friday, the New York State Senate Elections Committee held a hearing to discuss election reform bills currently before the Senate. Among the bills included was Senate Bill 1266, the Voting Rights Notification and Registration Act, sponsored by Senator Velmanette Montgomery. Similar bills have been passed by the Assembly twice before, but companion legislation has never before moved in the Senate. Friday's hearing was an important step forward.
Brennan Center research has shown widespread and persistent confusion around the country regarding voter eligibility rules for people with criminal histories. New York is certainly no exception. Senate Bill 1266 would help eliminate this confusion and would educate individuals about their voting rights.
Read the rest of this story ...
Tags: Democracy, NY Reform, Voting After Criminal Conviction, Voting Rights & Elections, Voter Registration
By Lawrence Norden – 04/23/09
Yesterday, Ohio Secretary of State Jennifer Brunner released to Governor Ted Strickland and the Ohio General Assembly a "blueprint for enhancing Ohio's elections." This blueprint (click here to download) is the culmination of work that began immediately after the 2008 election, when Secretary Brunner convened the first Ohio Elections Summit, which I chaired. The bipartisan Ohio Association of Election Officials has expressed support for Secretary Brunner's proposal, and I'm hopeful that it will move the ball closer toward important improvements in Ohio election administration and law.
The December Elections Summit called by Secretary Brunner, in addition to a later conference in March, brought together voters, non-partisan and partisan election experts, election officials and state legislators, of both political parties. These events were deliberative and substantive. As I've blogged before, I would very much like to see more Secretaries of State follow Jennifer Brunner's lead and adopt similar processes in their states.
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Tags: Democracy, Voting Rights & Elections, Election Day Issues, Voter ID, Voter Lists and Databases, Voter Purges and Challenges, Voter Registration, Voting Technology
By Kristen Baker & Nelly Ward – 04/13/09
As more and more states move to require voters to show photo ID before they can cast a ballot—a policy that we've repeatedly explained is unwise and unnecessary—a number of states have proposed to restrict access to the polls even further, by passing proof of citizenship requirements for voter registration.
These dangerous proposals will suppress voting without meaningfully preventing fraud. They should be rejected.
Read the rest of this story ...
Tags: Democracy, Voting Rights & Elections, Voter ID
By Adam Skaggs – 04/01/09
Looks like Minnesota's senate race isn't the only one that's going to keep us waiting for a winner: it'll probably be at least another two weeks before anyone knows who won yesterday's closely watched special election in New York's 20th Congressional district.
As the New York Times reports, after yesterday's balloting, a "mere 65 votes" separate the two candidates vying to fill the Congressional seat vacated by New York's newest Senator, Kristen Gillibrand. Given that razor-thin margin, it may not be possible to declare a winner until all the absentee ballots are counted—and that may not happen until after April 13th.
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Tags: Democracy, Voting Rights & Elections, Election Day Issues, Voting Technology
By Adam Skaggs – 03/17/09
Countless pundits have suggested that the last two months have derailed President Obama’s plans to lead the country into a post-partisan era, but whether or not bipartisanship ever comes to Washington, D.C., one thing’s for certain: when it comes to the state legislatures, don’t hold your breath waiting for the demise of partisan politics—especially when it comes to election issues the parties think they can exploit to political advantage. That lesson’s been proved again and again over the last few weeks as state legislators across the country have debated strict voter identification laws.
In an op-ed piece they contributed to the New York Times last year, Jimmy Carter and James Baker summed up the partisan divide over requiring voters to present photo ID before voting:
Supporters of this policy argue that . . . election fraud will be reduced. Opponents . . . fear it will disenfranchise voters, especially the poor, members of minority groups and the elderly . . . . The debate is polarized because most of the proponents are Republicans and most of the opponents are Democrats.
Across the country, the parties are following this script closely, with Republican lawmakers pulling out all the stops to enact strict voter ID rules, and Democrats digging in to prevent disenfranchisement of poor, elderly and minority voters.
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Tags: Democracy, Voting Rights & Elections, Voter ID
By Lawrence Norden – 03/11/09
In December, Ohio Secretary of State Jennifer Brunner called together some of the country's leading election experts and voting rights advocates, as well as a bipartisan group of state legislators and election officials, to review the 2008 election and offer suggestions for reforming the state's election policy. She asked me to Chair this summit and to prepare a report summarizing the views of those who participated, providing relevant background and data where needed. She called this the "first step" in a process to solicit the views of Ohio voters and experts as she developed her reform agenda.
Read the rest of this story ...
Tags: Democracy, Voting Rights & Elections, Election Day Issues, Voter ID, Voter Lists and Databases, Voter Purges and Challenges, Voter Registration, Voting Technology
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