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Latest Information & Analysis   

Sixth Circuit Finds Lack of Standing in Ohio Jailed Absentee Voters Case

Oct. 27 (11:44 AM) - In a 2-1 opinion issued Friday, a three-judge panel of the Sixth Circuit U.S. Court of Appeals determined that a voter outreach organization did not have standing to sue on behalf of jailed absentee voters. The case is Fair Elections Ohio v. Husted.

U.S. District Judge Dismisses True the Vote's Claims Against IRS

Oct. 24 (9:16 AM) - U.S. District Judge Reggie B. Walton has issued an opinion dismissing vote-monitoring organization True the Vote's claims against the IRS and individual IRS officials. The case is True the Vote, Inc. v. IRS.

10th Circuit Affirms in Part, Reverses in Part, in Colorado Secret Ballot Case

Oct. 21 (3:51 PM) - The 10th Circuit U.S. Court of Appeals issued an opinion affirming the District Court's dismissal of claims alleging violations of substantive due process, the right to vote, and the right to free speech. Plaintiffs had sued Colorado's Secretary of State over the use of traceable ballots giving election officials the theoretical ability to learn how individuals voted. The court remanded claims regarding procedural due process and equal protection. The case is Citizen Center v. Gessler.

U.S. Supreme Court Denies Request to Vacate Fifth Circuit's Stay in Texas Voter ID Case

Oct. 20 (8:49 AM) - Over the weekend, the United States Supreme Court denied a request to vacate a stay issued by the Fifth Circuit last week. The Fifth Circuit's order blocked the decision of the District Court finding Texas' voter ID law unconstitutional. The case is Veasey v. Perry.

Federal Court Denies Ohio Libertarian Party's Motion for Preliminary Injunction in Ballot Access Case

Oct. 17 (4:35 PM) - U.S. District Judge Michael Watson denied a motion for a preliminary injunction filed by the Ohio Libertarian Party seeking to block the decision of the Ohio Secretary of State disqualifying candidates' nominating petitions. The case is Libertarian Party of Ohio v. Husted.

Arkansas Supreme Court Strikes Down Voter ID Law

Oct. 16 (9:19 AM) - The Arkansas Supreme Court yesterday issued an opinion striking down the state's voter ID law, affirming the lower court's ruling that the law violates the Arkansas Constitution. The case is Kohls v. Martin.

Fifth Circuit Grants Stay Request in Texas Voter ID Case

Oct. 14 (6:38 PM) - The Fifth Circuit U.S. Court of Appeals today granted an emergency motion for a stay pending appeal filed by the state. The court's order blocks the District Court's opinion striking down Texas' voter ID. The case is Veasey v. Perry.

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Recount Resources

Election Law @ Moritz has assembled a set of resources concerning the topic of elections going into overtime.

Swing State Focus

Media Hotline: (614) 292-0283

Commentary

David  Stebenne

Reshaping the Rules for Voting: How Two Different Eras Compare

David Stebenne

Fifty years ago, an eight – year period of innovation in voting rules began with ratification of the 24th Amendment to the Constitution. Formally adopted on January 23, 1964, it put an end to the practice (in several of the Southern and Border States) of requiring payment in order to vote in federal elections. Two years later, a U.S. Supreme Court ruling known as Harper v. Virginia Board of Elections interpreted the Constitution’s Equal Protection Clause so as to apply the ban to state elections as well. In 1965, Congress passed and President Lyndon Johnson signed into law a Civil Rights Act known less formally as the Voting Rights Act. It established federal registrars in Southern states where local registrars had long denied the right to vote to black residents. That measure was followed by Congress’s passage and the states’ ratification of the 26th Amendment to the Constitution. This amendment prohibited denying the right to vote to citizens who had reached age eighteen. Part of a trend to establish that age as the mark of adulthood, rather than the older standard of twenty-one years, the 26th Amendment was formally adopted on June 30, 1971. And, of course, during that same eight – year time period, the U.S. Supreme Court handed down landmark reapportionment rulings that required state legislative bodies to reapportion themselves (and U.S. House districts) promptly after each federal census, and to do so in accordance with the principle of one person, one vote. By the end of 1972, that reapportionment process was complete, and had produced some far reaching changes for voters at the ballot box. For example, in Maryland, where I mostly grew up, representation of the rural and conservative Eastern Shore counties greatly diminished in the Maryland General Assembly (and in Maryland’s U.S. House delegation), while that of the Baltimore metropolitan area greatly increased.

From the vantage point of more than four decades later, what all of those changes meant for the American electorate has become clear. The impact of the poll tax ban and introduction of federal registrars into the South substantially increased the number of black women voters. (The rise in felony disfranchisement among black men nationally over the past forty years meant that gains among black men voting in the South were offset by losses among black men voting elsewhere.) Voters between the ages of eighteen and twenty seldom turned out in large numbers, and so giving them the right to vote didn’t change much in terms of who voted with any regularity. Thus, the one major gain in terms of participation came among black women. At the same time, the propensity of people in the middle three fifths of the income distribution living outside the South to vote fell substantially over those forty years, among whites especially, a shift that was most pronounced from 1972 to 1996. (The decline of labor unions was the single most important reason for that.)

Those changes in who voted regularly had significant implications for national politics. Black women tend to be among the most strongly liberal voters in the country, in the contemporary sense of that word. Most self – described moderates are middle class white people. Substantially more voting by black women has tended to push the more liberal of the two major parties leftward, while substantially less participation by middle class whites has tended to push both major parties away from the moderate middle.

With this history in mind, consider the new eight – year period of reshaping voting rules that began around 2006 and has continued through the present. The major changes have been in the direction of making voting somewhat harder to do, thanks to new requirements to provide identification, restrict early voting, eliminating same – day registration, and barring votes cast in the wrong precinct from being counted at all, to give only four examples. North Carolina has recently been a leader in that regard, but those same kinds of changes have played out in many other states as well. Those changes in voting rules appear likely to reduce voter participation by the one group that gained a lot from the changes of the earlier era, i.e., black women, and the poorer of them especially. (Felony disfranchisement continues to keep voting by black men low irrespective of these changes in voting laws.) At the same time, interest in voting among middle class whites has increased substantially over what it was in the 1970’s, ‘80’s, and ‘90’s. They appear much better able to navigate the current system of voting requirements because middle class whites are significantly more likely to have the forms of identification, flexible schedules, literacy skills and familiarity with local governance needed to do so.

What this suggests is that whatever the intent of recent changes in voting rules, one of its most important consequences will be to strengthen the political power of the center, by discouraging voting somewhat among black women (and the majority among them with low incomes especially), who tend to be strongly liberal, while voting by middle class whites, who tend to be moderate, increases. Strengthening the center, in and of itself, is not so troubling in a country that seems excessively polarized. What is troubling is a way of revitalizing the center that follows, however unintentionally, from reducing access to voting by eligible citizens.  

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EL@M in the News

Daniel P. Tokaji

Wasserman Schultz says state's ID law struck down by Supreme Court

Professor Dan Tokaji was quoted in a Politifact article on judicial rulings in Wisconsin and Texas on voter identification laws. Several Democratic candidates labeled the decision as "striking down" the laws, something Politifact called into question.

"It’s not accurate to say it was ‘struck down,’ but it’s understandable" given the New York Times headline and other media coverage, said Daniel P. Tokaji, an Ohio State University law professor and expert on election law.

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Current Litigation

Williams-Yulee v. Florida Bar

State: Florida
Issue: Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment

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