Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Monday, January 16
MLK and Voting Rights Today
It's Dr. Martin Luther King, Jr. Day, an occasion not only to celebrate the accomplishments of one man with a dream, but also to assess the challenges that we still face in achieving the ideals of equality in the realm of civil and political rights to which he dedicated his life. Among Dr. King's most significant and lasting achievements is his work in securing enactment of the Voting Rights Act of 1965, which opened up the franchise to countless people who were excluded from voting altogether throughout most of the 20th Century.
Taylor Branch's third and final volume on America in the King years, entitled "At Canaan's Edge," tells the story of the VRA's enactment. Today's New Yorker has this book review. The first two volumes ("Parting the Waters" and "Pillar of Fire") were magnificent and this one is a must-read, particularly for those who care about voting rights. "At Canaan's Edge" details the years from 1965 through 1968, which included the march from Selma to Montgomery which was instrumental in passage of the VRA. The New Yorker review focuses on the collaboration between Dr. King and President Lyndon Johnson, leading up to passage of the VRA. Among the sources that Branch includes in his new book is tapes from the oval office during the LBJ administration, including ones of his converations with Dr. King. LBJ thought the VRA would be his greatest achievement, saying "It will do things that even that '64 [Civil Rights] Act couldn't do."
After its signing on August 6, 1965, the VRA had an almost immediate impact in opening up the voting booth to African Americans who had been prevented from voting -- often through brutal violence or threats of violence -- throughout the southern states. The first generation of VRA enforcement resulted in the dismantling of direct barriers to participation, such as literacy tests. But legislative bodies and congressional delegations still remained largely segregated, until the second generation of VRA enforcement. Critical to this effort was a focus on practices the had the effect of diluting minority voting strength, such as at-large election systems and districts gerrymandered to favor white incumbents. This led to an increasing number of people of color elected to office, especially in the 1980's and 1990's.
It would be nice to believe that we've resolved the issues of race and voting that the VRA was designed to deal with. Recent developments, however, suggest otherwise. There's no more glaring example than in the State of Georgia, Dr. King's home state. As the Atlanta Journal-Constitution reports here, the state's Black Legislative Caucus refused to attend Friday's commemoration of MLK Day, in protest of the Georgia legislature's recent re-enactment of a provision that would require all voters to show photo identification in order to vote. Among those who are less likely to have photo ID -- and thus would be more severely affected by this ultra-restrictive ID provision -- are African Americans, people with disabilities, elderly voters, and poor people generally.
Exclusionary practices like the ID bill are representative of the third generation of VRA enforcement. The proponents of the ID bill, of course, attempt to deny that it's a "racial issue." Of course, those who supported such exclusionary devices as the poll tax and literacy test said the same thing. It's no answer to assert that partisanship rather than race is the motivation for Georgia's bill. After all, the exclusionary practices that the VRA halted were also driven by a desire to protect white incumbents.
Among those who refused to attend Friday's MLK Day commemoration in Georgia was Rep. John Lewis, who was savagely beaten by the police as he led a march for voting rights in 1965. For Rep. Lewis and other black leaders, the hypocrisy of Georgia purporting to honor Dr. King while dishonoring his legacy through an exclusionary ID bill was simply too much to stomach. As Rep. Lewis put it, "I believe it was too great a contradiction to celebrate the legacy of Dr. King in one hour and pass the Georgia photo ID bill in the next."
Equally troubling are the actions of the U.S. Department of Justice with respect to measures that diminish minority voting strength. One of the most effective features of the VRA has been Section 5, which requires that electoral changes in covered jurisdictions be "precleared" by DOJ or a federal court. While the preclearance process has never been completely insulated from partisan politics, there's increasing evidence that DOJ has subordinated its responsibilities under the VRA to the interests of the Republican party. As I've discussed on several occasions, most recently here, DOJ has come under intense criticism for its decisions to preclear Georgia's prior version of its ID bill (subsequently enjoined by a federal court) and Tom DeLay's Texas redistricting plan (presently before the Supreme Court). In both cases, DOJ approved Republican-backed changes against the recommendations of career staff, who found that they would have a retrogressive impact on minority voting rights.
Celebrating Dr. King's legacy requires more than a mouthing of approval of his achievements, of the sort that we saw at the Georgia capitol on Friday. It requires recognition that the work of achieving equality, especially in the realm of democratic politics, is far from complete. Reauthorization of the VRA provisions set to expire in 2007 is a step toward that objective, but it is far from sufficient. We also need to consider how existing laws, such as Section 5 of the VRA, might be improved to eliminate or at least reduce the taint of partisanship that has become so distressingly apparent in recent months.