All content categorized with: Voting
Filter
Post List
Carceral Socialization as Voter Suppression
In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are powerful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples’ sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to participate in politics. Hence, the carceral system’s impact on political participation goes well beyond those who are formally disenfranchised due to convictions. It also suppresses participation among the millions of legally eligible voters who have not been formally disenfranchised—people who have had more fleeting encounters with law enforcement or vicarious interactions with the carceral system. This Article considers the implications of these findings from the perspective of voting rights law and the constitutional values underlying it. In a moment when voting rights are under siege, voting rights advocates are in a heated discussion about how our federal and state constitutions protect ideals of democratic citizenship and political equality. This discussion has largely (and for good reason) focused on how the law should address what I call “de jure” suppression: tangible election laws and policies that impose legal barriers to voting, or dilute voting power. Eliminating these formal barriers to voting is vital. But, I argue, fully realizing the constitutional values underlying voting rights will also require also addressing what I call “de facto” suppression, or suppression through socialization. This occurs not through formal legal restrictions on voting, but when state institutions like the carceral system systematically socialize citizens in a manner that is incompatible with democratic citizenship. I show how de facto suppression threatens the constitutional interests protected by the right to vote just like de jure suppression does. In short, by systematically socializing people in a manner that is fundamentally incompatible with democratic citizenship, the state can effectively strip a citizen of much of the instrumental and intrinsic value conferred by the right to vote. Those who are concerned about advancing and protecting voting rights should understand the carceral system’s anti-democratic socialization as a form of political suppression—one that should warrant constitutional scrutiny for the same reasons that de jure suppression should warrant scrutiny.“Why Should I Go Vote Without Understanding What I Am Going to Vote For?” The Impact of First Generation Voting Barriers on Alaska Natives
This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language speakers received, containing only the date, time, and location of the election, along with a notice that they could request language assistance. Those two pieces of evidence, when set side by side, showed the fundamental unequal access to the ballot. The lessons learned from Nick and Toyukak detailed below are similarly simple: (1) first generation voting barriers still exist in the United States; and (2) Section 203 of the VRA does not permit American Indian and Alaska Native language speaking voters to receive less information than their English-speaking counterparts. The voters in these cases had been entitled to equality for 40 years, but they had to fight for nearly a decade in two federal court cases to get it.Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement
Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike. In light of those failures, is felon disenfranchisement here to stay? This Note contemplates that question, beginning with a comprehensive analysis of the history of felon disenfranchisement provisions in America, tracing their roots to the largescale effort to disenfranchise African Americans during Reconstruction, and identifying ways in which the racism of the past reverberates through practices of disenfranchisement in the present day. Applying this knowledge to understandings of prior case law and recent voting rights litigation, a path forward begins to emerge.Barriers to the Ballot Box: Implicit Bias and Voting Rights in the 21st Century
While much has been written regarding unconscious or “implicit bias” in other areas of law, there is a scarcity of scholarship examining how implicit bias impacts voting rights and how advocates can move courts to recognize evidence of implicit bias within the context of a voting rights claim. This Article aims to address that scarcity. After reviewing research on implicit bias, this Article examines how implicit bias might impact different stages of the electoral process. It then argues that “results test” claims under Section 2 of the Voting Rights Act (VRA) present an opportunity for plaintiffs to introduce evidence regarding implicit bias in the electoral process. In addition, this Article explores policy solutions to reduce the impact of implicit bias in elections.Poll Workers, Election Administration, and the Problem of Implicit Bias
Racial bias in election administration-more specifically, in the interaction between poll workers and voters at a polling place on election day-may be implicit, or unconscious. Indeed, the operation of a polling place may present an "optimal" setting for unconscious racial bias. Poll workers sometimes have legal discretion to decide whether or not a prospective voter gets to cast a ballot, and they operate in an environment where they may have to make quick decisions, based on little information, with few concrete incentives for accuracy, and with little opportunity to learn from their errors. Even where the letter of the law does not explicitly allow for a poll worker to exercise discretion, there is a strong possibility that unconscious bias could play a role in poll worker decision-making. Whether a poll workers' discretion is de jure or de facto, the result may be race-based discrimination between prospective voters. This Article addresses how unconscious bias may play a role in the interaction between poll workers and prospective voters and discusses some ways in which the potential for unconscious bias to operate in America's polling places may be mitigated.Let’s Not Jump to Conclusions: Approaching Felon Disenfranchisement Challenges Under the Voting Rights Act
Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the disagreeing courts. The crux of this Article is that both sides of the debate have erred. Both sides wrongly assume that the consequences of accepting these vote denial challenges are predictable. However, because a standard approach to vote denial challenges under Section 2 does not currently exist, no court can foresee the results of allowing such challenges to felon disenfranchisement laws. Therefore, predicting the constitutional implications of accepting these challenges without first identifying an appropriate analysis is impossible. This Article concludes by proposing an analysis for consideration. The proposed approach is a tailored version of sliding scale scrutiny--an analysis that the United States Supreme Court following Burdick v. Takushi, now applies to constitutional voting rights claims. Using this adapted approach, the Supreme Court can resolve the current split in authority and find that Section 2 is a viable vehicle for challenging racially-discriminatory felon disenfranchisement laws.The Power of Observation: The Role of Federal Observers Under the Voting Rights Act
The Voting Rights Act of 1965 (VRA) is one of the most successful civil rights laws ever enacted. Following its passage, the promise of the Fifteenth Amendment has become a reality for millions of Americans. Black voters in the South register to vote without being subjected to discriminatory tests or devices. Minority citizens can cast ballots free of intimidation and violence. Barriers posed by English-only elections have been removed for many language minority voters. Voters are permitted to receive assistance from the person of their choice. Federal observers play an indispensable role in serving as the eyes and ears of the Federal Government and the public it protects to ensure compliance with the Act. This Article explores the role of federal observers under the recently reauthorized VRA. It describes the federal observer provisions, including the role of observers, where they are deployed, how they are trained, and the ways in which their reports are used. It outlines steps that have been taken to ensure the provisions are constitutional by allowing observers to observe all steps of the voting process while preserving ballot secrecy. It explains why federal observers must be kept neutral and free from partisanship. It concludes with a discussion of the substantial role that federal observers played in securing the voting rights for limited-English proficient Spanish-speaking voters in Passaic County, New Jersey, in the face of widespread disenfranchisement. By preventing discrimination, enforcing the VRA, and measuring progress of non-compliant jurisdictions, federal observers help "secure equal voting rights of all citizens."The Politics of Preclearance
This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead to under-enforcement of the Act. Yet Congress chose not to act on those concerns while placing the Department of Justice at the center of its voting rights revolution. By and large, this is the way that the Supreme Court has understood the Department's role. Second, the currently available data do not support the charge that politics has played a central role in the Department's enforcement of its preclearance duties. This conclusion holds true for preclearance decisions up until the Clinton years. The data are ambiguous with respect to the Justice Department of President George W. Bush.The End of Preclearance as We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act
This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition of purpose thrown out by Bossier II. The authors believe that the analysis in the following pages provides critical evidence for the debate over reauthorization and revision of the Voting Rights Act.After Georgia V. Ashcroft: The Primacy of Proportionality
This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. In the face of this uncertainty, lower courts will rely increasingly on the proportionality standard of Johnson v. De Grandy, which marked the midpoint in the judicial shift from Justice Brennan's worldview to Justice O'Connor's world-view. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. Hazeltine and Session v. Perry. In Shirt, American Indians in South Dakota suffered a history of voting discrimination, racially polarized voting, and a dearth of safe districts; while in Session, Blacks and Latinos in Texas at least possessed a larger proportion of safe districts. What emerges from the comparison, then, is the tendency of proportionality to neutralize history and polarization. Through other post-Ashcroft cases, Part II teases out the differences (i) between influence districts as injury and remedy and (ii) between a jurisdiction's Section 5 and Section 2 obligations—details closely related to how proportionality is measured. Finally, Part III discusses substantive representation, the ideology that drove much of Ashcroft's analysis. Framing it as a symptom of nonpolarized voting, this Note concludes that endorsement of substantive representation as a device to achieve colorblindness will obscure the causes of polarization.
