Election Law @ Moritz



Reshaping the Rules for Voting: How Two Different Eras Compare

David  StebenneOctober 14 (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.   [Read Comment]

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

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Strickland's Residency:  Problem for Candidacy?

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October 18 , 2006

Ohio’s democratic gubernatorial candidate Ted Strickland is facing a challenge to his voting registration in his hometown of Lisbon, Ohio, in Columbiana County. The challenge alleges that Strickland has a condominium in Columbus, in Franklin County, that is his primary residence, and that therefore he is no longer qualified to vote in Columbiana County. The challenge was filed with the Columbiana County Board of Elections, as required by state law. Last week, the Board split 2-2 along party lines on whether to grant Strickland’s motion to dismiss the challenge, and sent the matter to the Secretary of State to break the tie. Yesterday the Secretary of State’s office sent the matter back to the County Board and asked it to conduct a full hearing on the matter. But the issue involves more than just whether Strickland will be eligible to vote on November 7. The issue also has the hypothetical potential to affect his eligibility as a candidate for governor.

However, for the challenge to Ted Strickland’s residency in Lisbon to result in the disqualification as a candidate, three distinct legal hurdles must be overcome. First, the challenge must prove that Strickland is not eligible to vote in Columbiana County because he is not a “resident” there for purposes of the statutory provision governing where an Ohioan may vote. Second, if this were proven, then someone would need to find a judicial avenue for seeking Strickland’s disqualification as a candidate. Third, ultimately the Ohio Supreme Court (where the case would inevitably end up) then would have to conclude that the result of Strickland’s ineligibility to vote in Columbiana County is that he does not “possess the qualifications of an elector,” as required by the Ohio Constitution to be eligible for elected or appointed state office. These are high hurdles, as follows.

As for the first hurdle, Ohio code expressly provides that one who removes himself from his home county for purposes of U.S. government service in another state does not thereby lose his residence in that home county. The key question is whether the person has an intention to return there. The facts as I know them concerning the Strickland challenge are only slightly more complicated than this statutory proviso, in that he has both left his Lisbon home to serve as a congressman in Washington and has acquired a third resting place, in Columbus. He credibly argues (and I understand has publicly explained to his constituents) that this allows him to access more of his district than if he always returned to Lisbon, near the northern end of his snake-lake district along the Ohio River, every time he is back in Ohio. Even absent this express proviso, Strickland seems to be in a position to make a strong argument that he has the necessary indicia of residency in Lisbon, including an intent to return there, notwithstanding contrary indicia, such as a homestead property tax exemption for his Columbus home, or payment of Columbus city income tax, which he could argue are still only "temporary" during his term of federal service.

As for the second hurdle, even if Strickland ultimately were deemed not to have been “registered to vote for thirty days,” it could well be a separate question whether at this point that would entitle someone to insist that his name be removed from the ballot, or that votes cast for him not be counted. Someone would need to bring a new challenge to this effect, after the Board of Elections resolves the matter. It may be that a court hearing such a claim would conclude that it lacks jurisdiction over this issue, or that the time for determining a candidate’s eligibility has now passed. Specifically, it appears that the only statutory provision for challenging a candidate’s eligibility on the basis that the candidate is not an elector is in ORC 3513.05, which requires that the challenge be filed sixty-four days before the primary election, and filed not with a court but with the election officials with whom the candidacy petition was filed – in this case, the Secretary of State. Although conceivably a court might conclude that it had jurisdiction over an implied right to challenge the eligibility of a general election candidate after the primary election is over, any such implied right might also include some reasonable cut-off date well in advance of the election.

As for the third hurdle, while the language of the constitution can support a case that if Strickland is stricken from the voter registration lists in Columbiana County then he is not eligible for state office, it seems unlikely that the provision will in fact be so interpreted. By its terms, Article V Section 1 of the Ohio Constitution provides that an Ohioan over 18 who has been “registered to vote for thirty days” has the “qualifications of an elector,” as required by Ohio Constitution Article XV Section 4 to be eligible for state office. If the Columbiana County Board of Elections decides that Strickland is not eligible to vote in Lisbon, then presumably they would strike him from the registration list, and one could argue that Strickland then would not have been registered to vote for thirty days. But in the few analogous cases that are available to serve as preceent, Ohio appellate courts have not read the statute this way, concluding that as long as a candidate had been registered somewhere, though improperly, and remained eligible to be properly registered somewhere else (suitable for the office the candidate sought), then the candidate remained eligible for that office, even though the candidate was not personally eligible to vote in that election.

Thus it appears that a succeessful challenge to Strickland’s candidacy is highly unlikely.

Update (10/19/06): According to this article in the Dayton Daily News, Ted Strickland has stated that he plans to file a lawsuit regarding the challenge to his eligibility to vote.