Despite their differences, the voting law experts who gathered on November 13 for the NYU Law Alumni Association’s Annual Fall Conference, “The Future of Voting Rights,” all seemed to agree that the electoral system is in a state of disarray.
Moderator Richard Pildes, Sudler Family Professor of Constitutional Law, laid out two broad sets of issues: “the constant embarrassment we seem to have with respect to our voting systems in elections” and the consequences of the Supreme Court’s recent opinion in Shelby County v. Holder, which effectively defanged the section of the Voting Rights Act requiring municipalities with a history of electoral discrimination to obtain federal preclearance for any changes to voting laws or procedures.
The panel discussion, organized in cooperation with the NYU Journal of Legislation and Public Policy, kicked off with Robert Bauer, distinguished scholar in residence and senior lecturer at NYU Law as well as co-chair of the Presidential Commission on Election Administration. Bauer, general counsel to the Democratic National Committee, had also served previously as White House counsel and as general counsel to Barack Obama’s 2008 and 2012 election campaigns.
Discussing his commission work, Bauer explained that identifying current electoral problems is more straightforward than solving them. The obvious problem of long lines—a notorious emblem of the 2012 election that prompted Obama to say in his victory speech, “We’ve got to fix that”—could stem from multiple causes, including polling place mismanagement, long and complicated ballots, and dysfunctional machinery. That single issue of lines, Bauer said, “brings into the discussion a range of questions about the quality of election administration in the United States.”
Benjamin Ginsberg, who was national counsel to the Bush-Cheney presidential campaigns in 2000 and 2004 and to Mitt Romney’s presidential campaigns in 2008 and 2012, is the other co-chair of the Presidential Commission on Election Administration. Apart from the problem of long lines, he said, the commission is also scrutinizing poll worker recruitment and training, military and overseas voting, and ballot design, among other elements.
Adjunct Professor Myrna Pérez, deputy director of the Democracy Program at NYU Law’s Brennan Center for Justice, described legislative trends regarding voting rights in states around the country. While 2012 was a banner year for attempts to restrict the franchise, she said, 2013 has seen far fewer such bills introduced. “We need to continue the effort to make restricting the right to vote toxic,” she said, adding that the effective dismantling of Section 5 of the Voting Rights Act translated into more resources being expended on litigation.
Speaking directly to that sea change in litigation was Dale Ho, director of the ACLU’s Voting Rights Project. Rather than cutting off potentially discriminatory voting laws before their implementation, he said, victims of such laws can now mount challenges only after the fact. Ho predicted worse problems in more places, explaining that the burden of proof is now on plaintiffs rather than jurisdictions. “We have an uphill battle ahead of us, but at least it’s exciting,” he said wryly.
In a spirited speech, Julie Fernandes, a senior policy analyst at the Open Society Foundations, added her own thoughts about the end of preclearance to those of Ho. “Post hoc remedies don’t work very well in our world,” she said. “In the world of elections, once an election happens, it’s over. No one cares.”
Spencer Overton, a professor at George Washington University Law School, referenced a group of scholars who argue that race-neutral reform, rather than reform based on racial discrimination, should now guide Congressional efforts to improve federal elections. “I understand this shift,” said Overton. “Race relations have improved dramatically in the last 50 years, and our nation has elected an African American president.” But, he argued, racial discrimination in voting persists, and voting laws preventing such discrimination would actually attract broader support in Congress than a generic reform bill would.
Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, made a counterargument, pointing out that Congress couldn’t decide how to adjust the Voting Rights Act in 2006, so it voted simply to extend the act until 2031. The problem, Issacharoff said, was that the trigger for preclearance under Section 5 for most jurisdictions was based on the voting turnout in 1964, the year the act originally passed. Further, he asserted, the pivotal state in every presidential election since 2000—in terms of litigating the manipulation of election rules—had been Ohio, which was never covered under Section 5.
Issacharoff described a conflicted bipartisan environment that is much more complicated than the Democratic Jim Crow South had been, and suggested that the courts were working to construct a new constitutional doctrine protecting voting integrity and the electoral process against insiders’ manipulation. “It starts to look beyond the immediacy of how it’s done in a particular case,” he said, “and tries to think systematically about the core vulnerabilities of our election system and our democracy, and how you address those systematically in the world in which we live today.”
Watch the full video of the event (1 hr, 58 min):
Posted on November 20, 2013