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Voting rights remain a contentious
issue after US Supreme Court ruling

By Tony Favro, USA Editor*

4 July 2013: The practical limits of democracy in the United States are defined by who can vote in free and fair elections. As more groups gained the right to vote in America, especially women and minorities, political structures changed and the way people experienced democracy expanded. Voting, in other words, brings the practice of democracy closer to the ideal of democracy in America. Democracy, of course, is never passive. It is both a function and a driver of popular struggles for rights and power. It’s not too much of a surprise, then, that voting - the most basic expression of democratic practice - continues to be a contentious issue in the United States.

Constitutional guarantees
Voter registration
Voter discrimination and fraud
Continuing struggles

The US Supreme Court is the ultimate arbiter of constitutional disputes. In two recent decisions, the Supreme Court appeared deeply conflicted over voting rights. On 17 June 2013, it voted 7-2 to keep voter registration simple and uniform throughout the country by striking down an Arizona law that required proof of citizenship. On 25 June 2013, it voted 5-4 to uphold an Alabama challenge to the federal government’s right to approve changes to election laws by certain states and localities. This is decidedly mixed news for urban areas. Most of the people directly affected by the Supreme Court’s rulings are likely to live in urbanized areas.

Constitutional guarantees
The first Article of the US Constitution gives the individual states the right to regulate all elections within their borders; however, “Congress may at any time by Law make or alter such Regulations.” In other words, the federal government has the authority to override state election laws, but only pertaining to federal elections. This Article also gives Congress the authority to enact laws ensuring that citizens are able to vote.

After the American Civil War (1861 – 1865), the 15th Amendment to the Constitution gave Congress power over all elections—federal, state, and local—in matters of race. The intent of the 15th Amendment, ratified in 1870, was to ensure the political equality of former slaves and their descendents. Many states, especially former slave-holding states, enacted overtly racist election laws in defiance of the 15th Amendment. The federal government’s response was ineffectual. It lacked the resources, time, and will to litigate against unconstitutional laws on a case-by-case basis or enact other enforcement mechanisms. Congress’ unwillingness or inability to enforce Constitutional guarantees against racial discrimination in voting meant that racism in voting remained firmly entrenched in American society for the next 100 years.

It was not until the Voting Rights Act was passed in 1965 that the federal government took its constitutional mandate to ensure free and fair voting for all citizens seriously. To avoid being stymied by legalistic maneuvers by state and local governments, the Voting Rights Act required certain states and localities to obtain advance approval, or “preclearance”, for any proposed changes to their election laws. The preclearance requirement was designed to prevent discriminatory election changes from taking effect. Sixteen states, in whole or in part, were subject to the preclearance requirement; most, but not all, were former slaveholding states, such as Alabama. Alaska and parts of New York, Michigan, and California were also covered to prevent discrimination against racial, ethic, or language communities. All of these areas had a history of discriminatory voting practices

The 16 states and parts of states were determined according to standards established in Section 4 of the Voting Rights Act. These areas include a third of the entire US population, about 45 per cent of the US urban population, and a majority of all African-Americans and Latinos.

The 25 June 2013 decision puts an end to Section 4, and, therefore, strips all the power from the entire Voting Rights Act. The Supreme Court said that the methodology used to decide which geographies were subject to preclearance were outdated. The Supreme Court left it to Congress to determine new criteria.

Voter registration
In the United States, the voting process begins with registration. Citizens 18 years of age and older must register to vote by filling out a specific form. Citizens who are not registered, usually cannot vote. Convicted felons are also prohibited from voting in many states.

Voter registration is closely monitored by policymakers and interest groups. The number of registered voters correlates with voter turnout. In recent decades, for example, middle-aged and middle-class whites registered and voted in noticeably higher numbers than lower-income minority citizens, although this may be changing, especially in urban areas.

In 1993, Congress passed the National Voter Registration Act, which mandates the use of single, simplified voter registration form nationally. The intent of the Act is to increase the number of citizens registered to vote and to prevent state and local governments from discouraging voting by certain groups through the use of confusing or complex registration forms and procedures.

Arizona challenged the National Voter Registration Act by requiring individuals to provide proof that they are US citizens in order to register. The 17 June 2013 Supreme Court ruling effectively prohibits states and localities from making it more difficult for people to register to vote than federal law allows.

Voter discrimination and fraud
How widespread is voter discrimination in the United States? It’s not an easy question to answer.

Since the beginning of 2011, 22 states passed 33 bills that make it more difficult for citizens to register and vote, according to the Brennan Center for Justice at the New York University School of Law. Restrictions to voting include reducing voting hours and days, requiring voters to present specific forms of identification, purging voter rolls, and redrawing election district boundaries or changing election methods to dilute the voting strength of certain groups. Many of these restrictive and discriminatory laws were blocked by the Department of Justice, which is responsible for enforcing the Voting Rights Act, or overturned by voters in special elections or by subsequent state legislation.

In the past 15 years, the Department of Justice blocked about 90 state and local election changes before they went into effect. Over 150 additional proposed changes were withdrawn when the Department of Justice questioned them. In other words, the preclearance requirement of the Voting Rights Act both prevented and deterred discrimination in elections.

While several states have attempted to make it harder to vote, others are making it easier. According to the Brennan Center, at least eight states passed laws making it easier for citizens to register and vote over the past two and a half years, and 16 other stares are advancing legislation to enhance voting. Expanded voter opportunities include easier ways for citizens to register, pre-registration for youth under 18, more early voting opportunities, and the implementation of minimum standards at polling places to reduce long lines.

Laws restricting voting most often are proposed to stop alleged voter fraud. Supporters of restrictions allege that many people vote illegally in order to obtain government benefits for themselves at the expense of hard-working American taxpayers, citing cases of individuals registering to vote more than once or of non-citizens voting. However, numerous studies have found no reliable evidence of widespread voter fraud in the United States.

Continuing struggles
Without a robust Voting Rights Act, it’s doubtful that existing civil rights laws could prevent discriminatory voting changes. States, for example, could pass multiple laws, or implement existing laws that were deemed unconstitutional but are still on the books. This would require multiple lawsuits on the part of the federal government to prevent. The time, effort, expense, and uncertain results of such litigation would likely mean that many discriminatory practices would be implemented.  

The Supreme Court may have provided clarity with its recent rulings, but it did not end the controversy. After all, restrictive measures are proposed by activists who wish to suppress the vote of those who are likely to vote against them, their party, or their causes. Expansive laws are supported by those who have the most to gain from a larger electorate.

The responsibility for drafting new rules that set the parameters of political maneuvering for votes now rests with the US Congress, where it faces a contentious and uncertain resolution.

*Tony Favro’s latest book Hard Constants: Sustainability and the American City is now available free of charge from City Mayors. Please complete our order form to receive a pdf copy. Libraries of academic institutions may receive a hard copy. Order form

Tony Favro also maintains the blog Planning and Investing in Cities.

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