The partisan politics of election laws

February 21, 2013

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

Many commentators assume that the conservative Supreme Court justices will strike down Section 5 of the Voting Rights Act. Like Abigail Thernstrom, however, we are not so sure. Congress clearly has the authority to continue to maintain Section 5. If the court does strike it down, though, it will give Congress an opportunity to update the act for the 21st century.

In 2012, state legislatures passed many partisan initiatives designed to constrain the right to vote ‑ ranging from efforts to end same-day registration to adding voter identification laws. In Virginia, state senators used one colleague’s absence to pass a new, arguably discriminatory redistricting plan. In Indiana and North Carolina, new proposals would make it harder for some students to vote. Some states are considering tinkering with the way they choose electors to the Electoral College.

Some of these initiatives may have a disparate racial impact — and might be actionable under Section 2 of the Voting Rights Act. Some may even have been motivated by an intent to discriminate. But many of the actions that affect racial minorities seem to do so for partisan political purposes, not racial reasons.

Unless Congress can stop these partisan initiatives, the parties will increasingly target the other side’s voters for political gain.  The American public, meanwhile, ends up as collateral damage.

Any possible legislative solution in this polarized environment is unlikely to focus on a particular substantive right — such as voter identification. Perhaps, however, Congress could delegate some authority to an administrative agency and empower citizens to better protect their rights.

This solution should try to preserve two critical features of Section 5: the pre-clearance requirement, which prevents discriminatory laws from going into effect, and the burden-shifting framework. The latter places the burden of proof on jurisdictions subject to Section 5 oversight – in other words, they must show that their laws do not have a discriminatory effect.

To accomplish this, the Voting Rights Act must be amended in two ways. First, the statute would prohibit any voting qualification, proposed or applied by any state or political subdivision, that might have a substantial impact on a citizen’s ability to vote in federal elections.

Second, Congress should create a nonpartisan federal agency — a Voting Rights Office similar to the Congressional Budget Office. Just as the CBO gives Congress independent analysis on budget issues, a VRO would provide independent analysis on any proposed voting qualification or procedure that might have a substantial impact on citizens’ ability to vote in federal elections.

This analysis could include the effect that the proposed law would have on racial groups as well as other relevant populations. Its analyses would be public, and could be initiated by members of Congress, civil rights groups, citizens of the affected states or even members of the state legislature. It could score proposed state laws on an index of political participation. It could also provide independent policy recommendations of best practices.

This agency’s effectiveness would depend on an enforcement mechanism. Section 5 is now largely enforced by the Justice Department. We would also emphasize the role of citizens as private enforcers. Any citizen should be empowered to sue any state or subdivision to stop it from enforcing any proposed law or practice that could have a substantial impact on voting rights. Where the agency decided that the law interferes with voting rights, the state or subdivision would have to show why it does not.

These three changes would remove the Voting Rights Act’s most controversial aspects, while updating it for the 21st century.


PHOTO (Insert): The Capitol dome at sunset in Washington January 31, 2006. REUTERS/Hyungwon Kang



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Clearly the writers of this article don’t live in the same world as the rest of us. To implement their ill-conceived legislative “fixes” would create an unbelievable nightmare of frivolous litigation. But then, they are lawyers, so maybe that explains their “solution.

Posted by Shamizar | Report as abusive

yep, more government, more lawsuits, more gridlock. Just more of the same.

Posted by tmc | Report as abusive

We need another government agency like a hole in the head. Exactly what discrimination are you talking about? Showing an ID? How is that discriminatory?

What really needs to happen is they need to make it possible to vote online. It can be secure. You can file your tax return online, so there should be no objections whatsoever. I know people who didn’t vote because the lines were too long.

Voter apathy would be reduced if there were less barriers to voting like having to travel to some remote poling place and have to wait in order to vote.

They also need more than 2 political parties. Left, right, blue Democrat vs. Republican is pathetic. Independent does not count. It’s not a contender, there is no organized party.

Posted by Angerfist | Report as abusive

As if there were no more racism in America, as if the GOP hasn’t found new ways to skew elections their way.

Posted by borisjimbo | Report as abusive

If has less to do with who votes as to how the votes are counted. Therein lies the power the politicians desire. Voting needs to be considered an absolute right, just as some consider gun ownership.

Rather then more layers of challenge, there needs to be universal access, and reasonable requirements.

Suppression of the vote is the antithesis of democracy. Yet too often that is the goal, to make sure only the ‘right’ people vote.

But really, without noting the effects of gerrymandering, voting often is an exercise in futility.

Posted by pavoter1946 | Report as abusive

Vote integrity is neither a GOP or Democratic party issue (spare me the bleeding hearts, please.) It’s the process that demands attention (a) to ensure everyone legally able to vote has the “opportunity” to do so, and (b) that one person has only one vote.

Thus, voter identification is paramount to the process. (Even in war-torn Iraq they were able to hold an election–remember the purple finger?) I am hesitant to embrace the idea that Voter ID laws prevent the “disenfranchised” from voting. The fact that people (like that 94 year old lady that the President identified in his SOTU) are willing to stand in line for hours to vote, but others are not willing to take the time to secure a state ID, literally months in advance of an election, is disingenuous at best.

And the idea that requiring a state issued ID is a constraint is absurd, when I see the so-called “disenfranchised” clearing TSA at the airport, cash a check at a bank, and showing ID in the supermarket to use their debit/credit cards–let alone secure publicly-funded benefits by proving who they are. That’s is a false argument espoused by those (lawyers?) that lack common sense. (Ask any one of them if they would take a check in payment for their services if the person could not prove who they are.)

Where the system gets complicated is where you have states issue ID’s to those not eligible to vote (e.g. drivers licenses in CA)and ballots are forwarded to out-of-state addresses (see New York residents voting in both NY and FL) That complicates a relatively easy verification process. Each ballot should have two unique numbers on it–(1) the ballot ID and (2) the voter ID. All of this can be read/processed using technology–and it virtually eliminates voter duplication without restricting one’s right to vote.

This same process could be used for mail-in ballots, where you have a system that tracks ballots that have been mailed against the voter ID number. Thus, you minimize the opportunity for the “precinct worker” in Ohio who voted more than once. Once her ballot is mailed, she has the responsibility to track it and return it–and she relinquishes her right to vote in the precinct. If she is unable to manage that process, then she has demonstrated that she is incompetent to vote in the first place. And if two ballots with her ID are processed, then both are nullified (period).

Posted by COindependent | Report as abusive

The system we have now for voting works. Monkeying with voting laws is only a way to diminish some voters’ ability to vote – who usually vote Democrat. It is an attempt to shut out certain blocks of people, and it plays into gerrymandering.

Striking Section 5 would be a colossal mistake because it flings the door wide for abuse by vote-seeking politicians. The Republicans who want these changes so badly now had better think for a minute; what if the Democrats make changes that affect YOU?

Leave Section 5 and voter laws alone. Our system works now, and just because the Republicans don’t like it doesn’t mean it warrants change.

Posted by JL4 | Report as abusive