Elections in America: Voting Rights

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This afternoon, the Harvard Law and Policy Review was privileged to host a panel on voting rights. The panelists (James Blacksher, Heather Smith, Rachel Schneider, and Ronnie Cho) discussed the implications of recent Supreme Court decisions and restrictive voting laws on voter registration and the franchise. Although the panelists discussed the significant setbacks that voting rights have faced in recent years (with one panelist joking that American elections would soon need to be monitored by international rights groups), they also proposed potential ways to counteract the steady rolling back of voting rights in America.

Existing voting regulations are outdated. Registration is paper-based in a digital world, and we still vote on Tuesdays in November, an arrangement designed to minimize disrupting farmers’ schedules. Some positive reforms could increase voting and facilitate voters’ engagement with the political process, like online registration, longer voting times (including reinstatement of early and Sunday voting in areas that have cut it back), and increasing the government’s responsibility to actively encourage citizens to vote instead of placing the onus on the citizen to shoulder the burdens of registration and voting. A more pressing concern, however, is fighting back against laws that increase limitations on voting rights. Attempts to stop people from registering to vote or make it more difficult to vote at all have proliferated across the country, while the movement to facilitate participation in the voting process by modernizing these regulations has been stilted.

One theme to which the panelists frequently returned was the impact of voting and registration restrictions on vulnerable groups generally and young people in particular. Three of the four panelists (Mr. Cho, Ms. Smith, and Ms. Schneider) have experience in youth political engagement and outreach, so laws that have a disparate effect on young people – such as restrictions on registering students to vote, or attempts to redefine residency to exclude resident students whose parents live out-of-state – were of particular concern to the panel. While youth political involvement has increased in recent election cycles, so have attempts to restrict them from exercising their voting rights. Midterm and local elections are particularly important to stopping measures that would disenfranchise young voters: because older voters are more likely than young ones to turn out in those elections, winners in those smaller elections can make procedural changes to voting laws that make it harder for young voters to participate in the “big” elections.

Increased burdens on the right to vote also have a disproportionate impact on low-income voters, who may have more difficulty leaving their job during shortened voting hours or obtaining government-issued ID. Of course, such burdens make it all the more difficult for those struggling on the edge of poverty to meaningfully participate in a way that might help them escape their economic circumstances. Voting regulations that exacerbate inequality also have a particularly strong impact on young people, many of whom struggle with outsized student loan debt and sluggish economic growth that limits their upward mobility. Ms. Schneider noted that restrictions on voting rights (that make it more difficult to vote or to register to vote) can deter voting for more people than a law would technically reach, since misinformation or confusion about the law makes it more likely that potential voters will believe that they may not vote.

Mr. Blacksher spoke about the Constitutional implications of the Shelby Country v. Holder decision and the need for Congress to recognize an affirmative right to vote. He argued that Shelby reaffirmed the logic of Dred Scott in holding that states define the content of citizenship rights, an argument explored at greater length in his article in HLPR’s Volume 8.1, co-authored with Professor Lani Guinier (an online version of the article is available here: http://harvardlpr.wpengine.com/wp-content/uploads/2014/03/Blacksher-and-Guinier-.pdf). Although the Court declined to recognize an affirmative right to vote as a “Privilege and Immunit[y]” of citizenship in the years following the passage of the Fourteenth Amendment, Mr. Blacksher contended that the Fourteenth Amendment nonetheless contains such an affirmative right. The onslaught of restrictive voting laws that restrict citizens’ ability to exercise their right to vote in practice (because of long lines, voter ID requirements, complex registration requirements, or strict limits on voting times) can only be combatted, he argues, with a Congressional recognition of this federal affirmative right to vote. Otherwise, state’s ability to create patchwork voting laws – which includes restrictive voting laws – will result in new restrictive measures even if the old ones are invalidated. A uniform set of regulations outlining who is entitled to vote and what the requirements to vote are would go a long way in reinstating the franchise for vulnerable groups and implicitly combating the problematic logic in Shelby that states have the right to define the rights of citizenship for their residents.

Of course, no election-related panel would be complete without a discussion of the Supreme Court’s recent decision in McCutcheon v. FEC, in which the Court struck down limits on aggregate donations to campaigns. Although Ms. Schneider and Ms. Smith both lamented the perception of corruption and undue influence that accompanies large political donations, both Ms. Schneider and Mr. Cho tempered their criticism of large political donations with recognition that money is a necessary ingredient to political engagement and, particularly, to actively reaching underrepresented groups like young people and minorities. Mr. Blacksher also noted that his suggestion that the Fourteenth Amendment contains an affirmative right to vote might provide a constitutional right that could counterbalance McCutcheon’s claimed First Amendment right to donate without limitation.

Ultimately, the right to vote has significant and dangerous implications for anyone who cares about substantive policies: as Ms. Smith noted in her opening remarks, “[i]f we want to see lasting change in our country, then we have to be involved in the political process.” Protecting the integrity of voting procedures and ensuring that every citizen can vote must come prior to any substantive policy considerations.


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