State of Elections

William & Mary Law School | Election Law Society

Disenfranchise

Weekly Wrap Up

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Every week, State of Elections brings you the latest news in state election law.

– Winter break at William and Mary is over, and State of Elections is excited to return to a  full time posting schedule. New articles will be posted every Monday, Wednesday, and Friday, beginning on January 11th.

– Senator Chris Dodd has announced he will not seek reelection in 2010.  During his time in the Senate,  Dodd proposed some sweeping changes to voter registration laws.  Take a look at S. 17, Dodd’s proposed “Voting Opportunity and Technology Enhancement Rights Act of 2005”.  If it had been passed, S. 17 would have required states to allow voters to register on election day, and also would have enabled voters to register electronically via the Internet.

– The 9th Circuit Court of Appeals has ruled that the disenfranchisement of felons violates the federal Voting Rights Act.  According to the court, the criminal justice system is so “infected” with racism that limiting the right of felons to vote is contrary to the Act’s prohibition against the denial of voting rights on account of race.  The court’s opinion can be read in full here.

– The Rhode Island Senate and House has enacted legislation allowing 16 and 17 year olds to “pre-register” to vote.  Those that pre-register will be automatically added to the voter rolls will they turn 18.  The bill had been previously vetoed by Rhode Island Governor Donald Carcieri, but the veto was overridden by the legislature.   For more information on pre-registration, see FairVote.org’s fact sheet.

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Weekly Wrap Up

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Every week, State of Elections brings you the latest news in state election law.

– The U.S. Census bureau has released its population estimates, and if their estimates are correct, 8 states stand to gain Congressional seats in 2010, and 10 states will lose seats.

– An editorial in the St. Petersburg Times accuses Florida’s “No Match, No Vote” law of disenfranchising thousands of minority voters during the 2008 presidential election.  The law denies voter registration to any applicant whose name on the registration form does not match the Social Security or Florida driver’s license databases.

– The Supreme Court has held its last session of 2009, and still has not released its decision in Citizen United v. Federal Election Commission. The Court was expected to overrule existing precedents that allowed the government to limit the amount corporations could spend on campaigns.  However, the long delay has fueled speculation that the Court’s decision may not be as clear cut as expected.  For a review of the issues involved in Citizen United, see this transcript of oral arguments and this analysis of the possible implications of the case.

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Op Ed: Take Jim Crow Out of the Virginia Constitution: Restore Voting Rights for All

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After the 15th Amendment was passed, giving blacks the constitutional right to vote, Southern states enacted Jim Crow laws, designed to keep blacks from actually voting. These laws included disingenuous literacy tests and poll taxes, which served as illegal but thankfully temporary impediments for black voters. One of the few ways that states found they could legally keep at least some blacks from voting, however, was to enact felon disenfranchisement laws. These laws say that after a felon has served his time in prison, he still cannot vote. Although African-Americans represent only about 12.5% of America’s population, they make up about 48.5% of its prison population. So, felon disenfranchisement laws, which are at best arguably constitutional, have proved an effective method of suppressing the black vote.

Virginia is one of only two states in the U.S. that permanently bars ex-felons from voting, even after they have paid their debt to society (the other is Kentucky). In Virginia alone, there are more than 377,000 disenfranchised felons. Of these, more than 208,000 are African-American.This is an abomination. Virginia’s laws must be changed. [Read more…] about Op Ed: Take Jim Crow Out of the Virginia Constitution: Restore Voting Rights for All

Weekly Wrap Up

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Every Friday, State of Elections brings you the latest news in state election law.

– Two citizen initiatives in Florida, designed to limit gerrymandering, have faced opposition from the Florida legislature.  Opponents of the initiatives claim that they reduce election opportunities for minorities.

– In Illinois, a lawsuit has been filed over an Illinois law that requires the county to use vote-counting machines that make an audible beep if a voter attempts to cast a vote that is blank for some offices.

– The Governor’s Commission on Strengthening Utah’s Democracy has issued a new report recommending “automatic and portable” voter registration in that state.

– Enjoyed last week’s post on felon disenfranchisement?  Want to know some of the historical roots and reasoning behind the policy?  Then check out Professor Pippa Holloway’s article “‘A Chicken-Stealer Shall Lose His Vote’ – Disfranchisement for Larceny in the South, 1874-1890”

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Discriminatory Disenfranchisement in Virginia

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Of Felons and Taints

Almost all states place some restriction on the rights of felons to vote. Three states–Kentucky, Florida, and Virginia–maintain a system of permanent disenfranchisement for convicted felons. There’s a long historical tradition of voting restrictions against felons, dating to well before the Constitution was ratified. Section 2 of the 14th Amendment explicitly acknowledges the practice of criminal disenfranchisement (and, to a degree, endorses it by not penalizing states during Congressional reapportionment for denying the franchise to those guilty of “participation in rebellion, or other crime”).

Given this long usage and constitutional recognition, lawyers often find it hard to challenge disenfranchisement laws as violating voters’ rights. Yet as we all know, not every law that appears neutral is constitutional. Literacy tests and poll taxes are both facially neutral, but both have long been recognized as acting to deprive non-white voters of their fundamental rights.

Still, challenges to disenfranchisement regimes are rarely successful. For example, a 2005 challenge to Florida’s law, was decimated by the 11th Circuit sitting en banc in the case of Johnson v. Bush (405 F.3d 1214). There, the court heard an appeal to a summary judgment against a group of felons seeking the restoration of their rights. The plaintiffs argued that Florida had re-authorized its felon disenfranchisement law in 1868 for the purpose of discriminating against black voters, and as such the law should be held invalid as intentionally discriminatory.

[Read more…] about Discriminatory Disenfranchisement in Virginia