Toward a Voting Rights Act for the Twenty-first Century

Following up on my earlier post, and for the record, my own view is that we badly need a Voting Rights Act designed for the twenty-first century. Based on the November 6 federal and state elections, it seems clear beyond peradventure that problems with unequal voting rights are not limited solely to denials that relate to race or only occur in jurisdictions presently covered under section 5 of the Voting Rights Act. Ohio, for example, featured multiple overt efforts to make voting easier for some citizens than others—efforts that had to be thwarted by the federal courts. Pennsylvania’s legislature adopted a strict photo-ID requirement that the Pennsylvania state courts, at the eleventh hour, invalidated. Had this law been in force, literally hundreds of thousands of Pennsylvania voters might well have been disenfranchised.

My point is simple but important: problems in the rules and machinery of our elections are not limited to race-based denials or abridgments of voting. Nor are the problems specific to the states of the former Confederacy. Partisan efforts to deny voting rights based on party identification, economic class, and urban residency appear to be all too commonplace. To be sure, federal courts can and will hear suits and grant relief under the Fourteenth Amendment, but Congress ought to consider enacting legislation aimed at preventing such violations before they occur. Indeed, the Voting Rights Act is arguably both over-inclusive (surely some covered jurisdictions would, if left to their own devices, not attempt to deny or abridge the voting rights of minority citizens) and also seriously under-inclusive (jurisdictions not covered by section 5, such as Ohio and Pennsylvania, plainly seek to make voting harder for some state citizens than for others). Congress can and should act to address this problem via its power to enforce the Equal Protection Clause of the Fourteenth Amendment.

Moreover, Congress’s powers in this area are not, strictly speaking, limited to enforcing the Fourteenth or Fifteenth Amendments. The Constitution grants broad authority to Congress with respect to federal elections for Congress. See U.S. Const., art. I, section 4, clause 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”). Accordingly, questions relating to early voting, voting by mail, and the like could be determined by Congress (at least for House and Senate elections). Although the Constitution gives the states great discretion to structure the selection of presidential electors, see id. at art. II, section 1, clause 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”), it is doubtful that states would exercise this discretion by conducting dual elections, with one set of rules governing congressional races and another for state, local, and presidential electoral contests.

Voting constitutes a fundamental right for purposes of applying and enforcing the Equal Protection Clause (so holds Bush v. Gore, by a 7-2 margin, and numerous other precedents). Simply put, the protection of voting rights in the twenty-first century should not be limited to addressing the problems of the twentieth century. Given the clear lessons of November 6—and regardless of whether the Supreme Court forces Congress to act by invalidating section 5 in the Shelby County v. Holder case—Congress should take a careful and comprehensive look at the problem of state efforts to deny or suppress voting rights.

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8 Responses

  1. Joe says:

    “so holds Bush v. Gore, by a 7-2 margin, and numerous other precedents”

    four justices dissented … they did not dissent “in part” … so no, it did not “hold” by seven votes even if two justices (one who joined Justice Stevens’ dissent too) for the sake of argument (while thinking the case shouldn’t have been taken and dissenting in full) would be willing to support a different sort of holding.

    The idea that voting is a fundamental right for purposes of applying the Equal Protection Clause probably would have received nine votes. Justice Ginsburg after all dissented in Crawford in part on that ground.

  2. Joe says:

    The basic point of the post is valid & appreciated.

  3. Ronald Krotoszynski says:

    Dear Joe:

    You need to re-read the Bush v. Gore opinions and vote count. On the REMEDY for the Equal Protection Clause violation, the decision to order the Florida recount stopped was 5-4 (along predictable lines). HOWEVER, the the per curiam holding that equal protection principles require minimum rationality in conducting a recount was, in point of fact, 7-2. Justices Souter and Breyer both agreed that Florida’s utterly random recount procedures violated the Equal Protection Clause; both dissented, however, with respect to the remedy. As it happens, and perhaps oddly, Justices Stevens and Ginsburg declared the radically inconsistent vote counting protocols, even from table to table in the same county and using the same voting machines, to be “good enough for government work.” Thus, the notion that equal protection principles constrain a recount was 7-2, not 9-0 (or 5-4). Check the opinion.

  4. Ken Arromdee says:

    Claiming that this proposal is a voting rights act is like claiming that a law prohibiting abortion is an anti-murder act–the description you give the act pretends to be neutral, but is really only for people who agree with you. Some people do not believe that abortion is murder, and some people do not believe that photo ID requirements violate voting rights.

  5. Joe says:

    Sorry. I read the opinions then and later.

    Four justices dissented. They did not concur in any part of the ruling. There was no 7-2 ruling. Florida’s recount procedures were not “utterly random” also Justice Breyer “concurred” in full in Justice Stevens’ dissent.

    Breyer didn’t “concur” in part; he in fact merely said that there “may well have” been an EP violation. Souter said there was a problem, but “The Court should not have reviewed” the case all the same. Souter also dissented. There was therefore no “holding” joined by seven justices even if two in some fashion agreed with them on the alleged problem.

    The OP also said: “Voting constitutes a fundamental right for purposes of applying and enforcing the Equal Protection Clause” is precedent, including 7-2 in Bush v. Gore. Stevens cited Reynold v. Sims “when individual votes within the same State were weighted unequally,” so I’m unsure why he and Ginsburg doesn’t count on this principle.

    He disagreed on using the Reynolds standard when “we have never before called into question the substantive standard by which a State determines that a vote has been legally cast.” But, in other cases, he would agree that “voting” is a fundamental right for EPC purposes. Again, Ginsburg agreed in Crawford.

    I agree with the basic point of the post but sorry Bush v. Gore was a 5-4 ruling. Four justices “dissenting,” Breyer joining Stevens’ in full. None of the four “concurred” with some “holding” of the per curiam. Saying they in some fashion agreed with general principles but noting that ultimately they “dissented” given what occurred is not that.

  6. Brett Bellmore says:

    “Florida’s recount procedures were not “utterly random””

    Got that right; Utterly random wouldn’t have been so bad, it would have canceled out on average. Arbitrary discretion is actually considerably worse than “utterly random”, because it’s capable of bias.

  7. Joe says:

    Any recount, any electoral, procedure carried out by humans is “capable of bias.”

    The ridiculousness of Bush v. Gore was largely that the assumed problem was not improved, but if anything worsened, by the ruling. The whole system was messed up, messed up some more by recent electoral rule changes, and an imperfect attempt to make the best of things was far from “utter random.”

  8. Brett Bellmore says:

    The real absurdity is that the courts have this “political question” doctrine, which they use to duck perfectly ordinary application of laws, and along comes a case where it legitimately applies, (The HOUSE is the judge of electors, per the Constitution, not the courts.) and they take the case anyway.

    There certainly was a very serious problem in the Florida recounts, in that the Florida supreme court flatly refused to set any uniform standard for judging ballots, in the face of evidence that the people doing the counting were engaged in partisan manipulation of the standards on a real time basis. But it was a problem for the Florida legislature, (By impeachment) and the House, (By choosing which competing slate of electors to accept.) to solve. Not the Supreme court’s.

    Even if you think they did the right thing, (I do.) they weren’t the ones entitled to do it.