Author: Janai S. Nelson


An African Election

Last night, I attended a screening of Jarreth Merz’s trending documentary, An African Election, as part of Columbia University’s Institute on African Studies’ yearlong series on African elections and democracy.  I have long awaited this film.  Not simply because it has received nods from Sundance, Spirit Awards, and other film critic bodies, but because it tells a profound story of African leadership, self-sufficiency, hope, and democracy. Indeed, those interested in democracy, elections, or just a riveting political story will be enthralled by this intimate exposé of an election passionately felt by an entire country and continent.

An African Election chronicles Ghana’s 2008 presidential election that marked the country’s historic double alternation in power and solidified its status as a maturing democracy.  Ghana has been hailed a beacon of democracy in West Africa for over a decade—and for good reason.  Former President J.J. Rawlings, who took power through the barrel of a gun in two successive military coups, organized democratic elections in 1992.   He ceded the presidency to the elected winner of the rival party in 2000 after a term-limited eight years in elected office.  Eight years later, the reigns of power passed again in the highly anticipated election that is the subject of the film.

The first sub-Saharan African country to gain independence, Ghana’s economy and global prominence is growing by leaps and bounds.  After giving the U.N. its first black Secretary-General in 1996, Ghana has been visited by each of the three most recent American presidents, and recently began off-shore oil drilling.  Last year, Ghana’s economic growth outpaced that of many higher income nations, including China.  To understand the story of the 2008 election, in many ways, is to understand the recipe for Ghana’s success, a key ingredient of which is a spirited citizenry that holds itself accountable for the future of the country.  An African Election captures this essence of the Ghanaian people with great artistry.

The film vividly portrays the prize democracy holds in the eyes of Ghanaians as an integral part of the country’s larger aspirations for sustained self-empowerment as seen in the trailer here.  Scenes of determined voters languishing in ten-hour queues and crowds jubilantly chanting the ballot count underscore that the act of voting in Ghana is more a community celebration of nationhood than a mere act of individual civic duty.  In addition, the deference, respect, and trust placed in Ghana’s electoral commission are refreshing reminders that neutral agents are vital in the structural design of successful election systems.

With Ghana’s next presidential election just months away, An African Election, released last year, serves as an important visual reference and testimonial of Ghana’s democratic achievements.  The upcoming election will undoubtedly present a variety of new challenges.  From developing factions within the incumbent party to the new administrative responsibility of registering and enabling prisoners to vote for the first time per Ghana’s 2010 court decisions enforcing the constitution’s right to universal suffrage, which I’ve written about here, Ghana will not have a easy road.  However, the stronger its history as a democracy, now archived and distributed for international consumption, the more Ghana has at stake.  More important, An African Election creates discussion points for elections beyond the continent by raising important questions and offering instruction on the electoral process and democracy in general.  In watching the film, one can’t help but wonder to what degree the internalized expectations of Ghana by it citizens and the international community served as a check on the integrity of its elections. The film also illuminates aspects of structural design, such as the role that an effective and political electoral commission can play as a crucial powerbroker in resolving the most delicate and uproarious of democratic tensions.

Indeed, as we approach the U.S. presidential election even sooner that Ghana’s in December, there is much we can learn from the unbridled enthusiasm and, at times, cautious optimism,that democracy engenders in this important African country.  And, while democratic concepts are not new to Ghana or its counterparts on the continent, it is Ghana’s ability to grapple with the challenges of the democratic process as a post-colonial nation in a region rife with pockets of grave conflict that makes this country’s election worthy of the big screen.


NVRA (National Voter Registration Act) vs. Voter ID and Other Voter Access Challenges

In the ongoing battle to improve access to elections and expand the electorate, civil rights groups have often used the Voting Rights Act of 1965 (and its amendments) as the preeminent weapon.  The most transformative legislation to come out of the civil rights movement, the VRA changed the complexion of this country’s elected bodies and increased access to political power for minorities through muscular remedies.  However, it is the NVRA (National Voter Registration Act), the VRA’s lesser known, younger cousin of sorts, that has been stealing headlines this week.

Sandwiched between the VRA and the more recent Help American Vote Act (HAVA)d passed in 2002, the 1993 NVRA is sometimes overlooked as a significant linchpin of voter access.  Indeed, the NVRA has played an important role in securing expanded registration opportunities for marginalized populations.  And, in the face of stringent voter ID laws that suppress voter turnout and shrink the electorate, both offensive strategies and defensive tools are needed.  The NVRA continues to prove that it can be effective on both fronts.

Also known as the “Mot0r Voter” law, the NVRA was enacted in 1993 to help standardize the voter registration process for federal elections which varied widely throughout the states.  In an effort to decrease this disparity, the NVRA requires state agencies to give a voter registration application to all individuals applying for or renewing a driver’s license, or applying for (or receiving) services at certain other public offices, such as public assistance benefits.  The NVRA also requires states to “accept and use” registration by mail for federal elections.  Both of these important aspects of the law were the subject of the NVRA’s prominence this week.

On Tuesday, the Ninth Circuit Court of Appeals issued a fractured, en banc opinion in Gonzalez v. Arizona in a challenge to Arizona’s Proposition 200 that requires prospective voters in Arizona to show proof of U.S. citizenship in order to register to vote.  The NVRA requires states to “accept and use” federal voter registration applications where applicants affirm that they are citizens of the United States and that they meet other voting prerequisites.  Although states retain the right to reject deficient applications under the NVRA, the Ninth Circuit held that the NVRA does not permit states to independently verify citizenship status by requiring proof of citizenship for registration for federal elections.  The court also addressed important claims under the VRA which others have analyzed here and here.  However, it was the NVRA that ultimately yielded a coup.

Since its inception, the NVRA has provided registration access to countless recipients of public benefits and government services and has permitted states to reject and purge registrations on a variety of grounds.   Nonetheless, states have repeatedly attempted to
undermine the law, as evidenced by the Arizona case, and in some instances evade implementation of the NVRA altogether. Wednesday’s important settlement victory against the State of Georgia is one in a long line of NVRA enforcement actions led by the Department of Justice and civil rights groups to force states to abide by their duty to expand registration opportunities.  For years, Georgia refused to implement the NVRA’s registration requirements to the fullest extent of the law.  The settlement in NAACP v. Kemp, however, now requires Georgia’s public assistance agencies to provide voter registration every time they apply for or renew benefits, or when they submit a change of address, including when these acts occurs via remote communications such as by telephone, internet or mail. Georgia’s stringent voter id laws still present independent challenges to voter access, especially since the popular Georgia Compass (or EBT (electronic benefits) card is not a photo id.   This makes continued enforcement of the NVRA all the more important to increase the overall number of registered voters.

As noted earlier, Georgia is not alone in its obstinance in implementing the NVRA.  Over half a dozen states refused, on constitutional grounds, to implement provisions of the Act when it first became effective until DOJ brought enforcement litigation, successfully defending the NVRA’s constitutionality.  And, the battle wages on.  Most recently, DOJ filed a complaint against the State of Louisiana, alleging that the State and its public assistance and disability agencies failed to offer voter registration opportunities  in violation of the NVRA.  DOJ filed a similar complaint against the State of Rhode Island that was resolved by consent decree in 2011, as were complaints against Illinois and Arizona, a repeat offender, in 2008.

Given the incessant proliferation of voter ID statutes, the NVRA’s role in increasing the number of registered voters is increasingly important.  Both the Arizona and Georgia cases underscore the need both to enforce the provisions of NVRA and protect against its circumvention by clearly defining the limits between federal and state authority under the Act.  While the Supreme Court likely will be the final arbiter as to whether stringent vote ID laws like Arizona’s can supplant the rights created under the NVRA, the NVRA remains a significant player in the body of laws that protect and safeguard voting rights.


African Elections in 2012 on the World Stage and in the Classroom

Teaching U.S. election law in the shadow of a presidential election is an election law professor’s dream. There is no better backdrop for the material or more engaging context to capture student interest in the subject.  However, as I also teach a comparative election law course that examines election law issues internationally, I had a difficult time deciding which to offer this fall in light of the seemingly record number of presidential and legislative elections this year.  On no other continent is this cloudburst of elections more evident than in Africa.  The concentration of African elections is owing  not just to Africa having more countries and democracies than any other continent; rather, the combination of the Arab spring and the happenstance of calendrical synchronicity has yielded a mother lode of elections on the continent.  Africa is evidence that, against many odds, democracy is at work. In the United States, democracy works in large part because of deeply entrenched historical values and a multiplicity of modern interests that depend on democratic institutions.  Indeed, in much of the Western world, democracy enjoys a worn expectation as a successful form of governance.  In modern Africa, however, democracy increasingly prevails because the lion’s share of its inhabitants is moving steadfastly and stubbornly against authoritarianism and the one-party state in hopes for a fairer, freer, and more equal form of government.  Simply put, democracy in Africa grows from the same soil of revolution and idealism that nourished the seeds of U.S. democracy nearly three centuries ago.  For those of us interested in the study of democracy, Africa is a place to watch in 2012. Read More


Death Penalty Repeal and the Age of Innocence Projects

Yesterday, the State of Connecticut took a critical step toward joining a handful of states whose recent death penalty repeals were motivated by unsettling evidence of innocent people on death row.  The post-midnight Senate vote following animated testimony in favor of a bi-partisan repeal bill was a close 20-16.  Republican Representative Smith stated that one of his main concerns with Connecticut’s death penalty is the record of DNA exonerations.  Not surprisingly, innocence held moral sway.

As counsel on a death penalty appeal early in my legal career, I witnessed the moral impropriety of a death sentence based on rife prosecutorial misconduct and set against a gnawing backdrop of actual innocence.  The defendant, Delma Banks, Jr., fortunately prevailed in having his death sentence commuted in an impassioned opinion delivered for the majority by Justice Ginsburg in Banks v. Dretke.  Despite this rare instance of habeas relief, Mr. Banks still faces the threat of a death sentence in a new trial.  Like many other death row cases, Mr. Banks’s retrial is based on stale evidence and questionable prosecutorial tactics.  Although the pursuit of innocence claims was foreclosed years ago, Mr. Banks’s case now exists in a climate of growing recognition of wrongful convictions.  Indeed, the trailblazing work of the Innocence Project and its many spinoffs has slowly permeated the national consciousness with the haunting whisper that the state sometimes kills innocents on death row. Read More


In Memoriam: Gil Noble

Gil Noble (February 22, 1932- April 5, 2012) was a legendary journalist, civil rights activist, and humanitarian.  He passed away earlier today at the age of 80.  Mr. Noble was most noted for his Emmy award-winning weekly public affairs program Like It Is on ABC.  Premised on reporting, analyzing, and discussing news through the lens of the black experience in America, Like It Is was an important and valued source of information in many communities for over four decades.  As the distinguished host of the show, which ran from 1968-2011, Mr. Noble gave scholars, intellectuals, activists, and everyday folk an opportunity to “tell is like it is” in a forum where their views would be held up to scrutiny but taken seriously.  I had the honor of appearing on Mr. Noble’s show years ago and have never forgotten the power of his presence and the gentleness of his soul.  He gave us news like it is and also like it should be—guided by the insight of a person of grace and abundant humanity.


Viewpoint, Voting, and Structuring the Electorate

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read More