By Jennifer L. Patin
February 24, 2016
This 2016 presidential election year is like no other in recent history. At the onset, some voters face unprecedented challenges, while others benefit from recently enacted election reforms. It is critical that voters understand the state of the franchise and how it may impact their experiences participating in the political process.
Significantly, unless Congress acts, this will be the first presidential election in 50 years without a critical protection of the Voting Rights Act (VRA). Section 5 of the Act requires certain states and political subdivisions with histories of voting discrimination to seek federal approval for any proposed voting changes. In 2013, the U.S. Supreme Court’s decision in Shelby County v. Holder (Shelby County) rendered Section 5 inoperable. Consequently, 2016 marks the first presidential election year in which voters in some formerly covered jurisdictions will be subjected to restrictive voting laws enacted as a result of the federal government’s inability to enforce the VRA as it did in the past. This means that approximately 24% of the non-white voting age population (VAP) was once protected under Section 5 and no longer is.
Where did minority voters lose Section 5 protection?
Drag sliding bar to view the two maps.
In recognition of the high-stakes and unprecedented nature of this election year, the nonpartisan Election Protection national coalition, led and organized by the Lawyers’ Committee for Civil Rights Under Law, will release a series of briefs that describe the state of voting rights in the months leading up to the November 8 presidential general election. With the belief that an informed electorate gives way to increased participation, Election Protection will:
- educate voters with the facts, analysis, and relevancy of 2016 voting news via timely briefs,
- engage voters and advocates locally via field programs in a number of states and digitally via the developing #ProtectOurVote social media campaign, and
- empower voters with information about their rights and the voting process via three nonpartisan voter helplines operated by trained volunteers—the Lawyers’ Committee’s 866-OUR-VOTE, the National Association of Latino Elected Officials’ 888-VE-Y-VOTA for bilingual English/Spanish assistance, and Asian and Pacific Islander American Vote and Asian Americans Advancing Justice｜AAJC’s 888-API-VOTE for help in English and Asian languages, including: Cantonese, Mandarin, Korean, Vietnamese, Bengali, Tagalog, Hindi, and Urdu.
Election Protection’s three voter helplines and the tools and resources offered by coalition partners will deepen voters’ understanding of the Top 4 Ways to #ProtectOurVote:
1) Plan to vote – Census data from the 2012 presidential election show that of registered African-American citizens who did not vote, 23% were “too busy.”
Voters, plan your trip to the polls as soon as possible. Arrange transportation for yourself or organize a carpool. Find out if you have access to early voting. Know your polling place location in advance.
2) Double-check the details – Nearly 9.5% of the nation’s youngest registered voters did not vote because of registration problems.
Voters, the rules are constantly changing due to states’ actions and developing litigation. Find out your state’s registration deadline and methods of registration. Verify your registration. Know what types of identification are required to register and to vote.
3) Report the problems – African Americans experienced the highest rate of registration problems and the highest rate of reported “inconvenient” polling place locations compared to other ethnicities.
Voters, it is difficult to predict where and when problems will arise. Be the eyes and ears of your community and report problems or potential snafus, like last-minute polling place changes, to Election Protection. A voting problem does not have to become a voting barrier.
4) Ask for help – Census data also shows that 11.5 % of registered voters did not vote because a recent move contributed to registration problems.
Voters, do not let confusion keep you from having a voice. Contact Election Protection to get help with voting.
Confronting the Challenges
For the entirety of 2015 to date, the Leadership Conference Education Fund has led the #RestoretheVRA social media campaign. The hashtag is a reminder that while Congress stalls on the VRA, jurisdictions once covered by Section 5 of the Act can skip the federal review process that they were bound to before the Shelby County decision. This means that those formerly covered jurisdictions can now take actions that make it more difficult for voters, and particularly minority voters, to vote. Consequently, a number of Election Protection legal organizations have worked to challenge discriminatory voting changes under other sections of the VRA and federal laws. From reports of discriminatory precinct and polling place changes in Georgia counties to restrictive photo ID laws in multiple states, the high costs of a weakened VRA are clear. Considering that recent voting barriers are not limited to the areas formerly covered by Section 5, some advocates suggest that Congress should not only restore, but also expand, the VRA’s reach.
In every major election cycle, Election Protection has to confront significant barriers to voter participation. Based on the coalition’s ongoing work and today’s pertinent voting rights news, Election Protection has identified the following issues as significant concerns for 2016.
Barriers to Voter Registration
Over the past decade, Dēmos, Project Vote, the Lawyers’ Committee, and other advocacy groups have monitored compliance with the National Voter Registration Act’s (NVRA’s) requirement that states offer voter registration at public assistance agencies.
Most recently, on January 29, 2016, Executive Director Brian Newby of the U.S. Election Assistance Commission (EAC) gave word to election officials of Alabama, Georgia, and Kansas that the states were allowed to require citizenship documents from applicants using the National Mail Voter Registration (Federal Form). On February 12, the Lawyers’ Committee, the Brennan Center for Justice, and several pro bono counsel filed suit against Newby’s decision on behalf of the Georgia State Conference of the NAACP, the Georgia Coalition for the People’s Agenda (People’s Agenda), three state chapters of the League of Women Voters (LWV), Project Vote, and individual plaintiffs. Plaintiffs challenged Newby’s action as outside his authority and against EAC policy. On February 17, plaintiffs asked the U.S. District Court for the District of Columbia to immediately block Newby’s actions. On February 23, the district court denied the plaintiffs’ request and will hold a preliminary hearing on the issue in early March. Meanwhile, Kansas voters are paying the price. According to a declaration from a Kansas election official, approximately 22,000 people applied to register to vote in Kansas in the first three weeks of February, but fewer than 7,500 were actually registered.
As an example of another ongoing matter, in 2014, Georgia rejected over 23,000 people’s voter registration applications because their records did not match information in the state’s driver’s license database or the Social Security administration database. African Americans submitted 70%, or more than 16,000, of those applications. The Lawyers’ Committee is working to find ways to improve the voter registration verification process and ensure that qualified Georgians who want to register to vote are able to do so.
NVRA lawsuits are also pending against North Carolina and Nevada.
The NVRA protects voters from being improperly removed, or purged, from the voter rolls. Before the November 3, 2015 municipal election for the City of Sparta in Georgia, the Hancock County Board of Elections and Registration (BOER) challenged the eligibility of over 160 registered Spartan voters. The Lawyers’ Committee and pro bono co-counsel challenged the removals in a federal district court in Georgia on behalf of the Georgia NAACP, the People’s Agenda, and five African-American Hancock County voters. Plaintiffs claim that the Hancock County BOER’s actions intended to suppress the African-American vote and give an unfair boost to white candidates in the Sparta municipal election and in the 2016 election cycle. Allegedly, the BOER challenged almost 17% of all eligible Spartan voters, and at least 53 voters, nearly all of whom are African American, were taken off the voter rolls. Due to the plaintiffs’ efforts, the Hancock County BOER has reinstated 15 of the purged voters to date.
Voter purges have occurred in past presidential election years. In 2000, Florida improperly flagged eligible voters as “felons” based on a flawed list created by the secretary of state. And in 2012, the Florida secretary of state attempted to purge “potential non-citizens” based on an erroneous list. County election supervisors and civil rights organizations moved to block this action.
Restrictive Voter ID Laws
During the 2016 primary election season, a number of states will have restrictive voter ID laws in effect that make it more difficult for voters to vote and have a disproportionate impact on racial minorities, poor people, the elderly, and young voters. Voters in Wisconsin will have to present photo ID at the polls for the first time since 2012, and in North Carolina, voters are required to present photo ID for the first time since the state’s law was enacted in 2013. In Texas, voters continue to be subjected to a photo ID law that three different courts have found to be discriminatory.
A survey examining the impact of voter ID laws during the last presidential election suggests that these types of voting laws have collateral damage, particularly for African-American and Latino youth voters. And numerous studies have found that the actual incidents of proven voter fraud are so low across the U.S. that they do not warrant strict voter ID laws. Voting rights advocates continue to challenge these laws in North Carolina, Texas, Virginia, Alabama, North Dakota and elsewhere. If Section 5 of the VRA were still in effect, the federal government would have had to review and pre-approve a number of these laws.
On January 15, 2016, a federal district court in North Carolina denied the North Carolina State Conference of the NAACP’s request to block the state’s new photo ID requirement for the March 15 presidential primary. Advancement Project and others challenged the law on behalf of the North Carolina NAACP and individual plaintiffs, and the American Civil Liberties Union (ACLU), the Southern Coalition for Social Justice (SCSJ), and others filed a similar suit on behalf of the LWV of North Carolina and additional plaintiffs. These cases were consolidated with a third similar suit brought by the U.S. Department of Justice. A trial began in federal court on January 25 and ended on February 1.
The Texas State Conference of the NAACP and the Mexican American Legislative Caucus, who are represented by the Lawyers’ Committee, the Brennan Center for Justice, the NAACP, and other co-counsel, and other parties including the United States, await a Fifth Circuit Court of Appeals decision on Texas’ restrictive photo ID law. The law could negatively impact anywhere from 600,000 to over one million voters who lack a form of the valid photo ID to vote, a disproportionate number of whom are African American or Latino. The law remains in effect while the Fifth Circuit considers Texas’ request to have the case reheard before the full Fifth Circuit panel of judges. In August 2015, the Fifth Circuit was the third court to find that the law violated the VRA and sent the case back to the district court to consider whether the law intentionally discriminates against minority voters.
Expanding the franchise
Given today’s barriers to the ballot, which have increased since the Shelby County decision, it is tempting look at the state of voting rights in America through bleak lens. But it has not all been discouraging. Voting rights advocates have had reason to celebrate even as 2015 ended and since 2016 began. In some of the states, barriers to the ballot are being torn down.
Modernizing voter registration
- Three states, Alabama, Iowa, and New Mexico, have launched online voter registration (OVR) systems in 2016. Now 33 states and the District of Columbia offer, or are gearing up to offer, OVR. As more states consider this beneficial reform, elections officials must find ways to make the process fully accessible to all voters, e.g. allowing voters the option to use the last four digits of their Social Security number for identification purposes and ensuring that voters can access OVR on a variety of electronic devices.
- Oregon and California have adopted automatic voter registration (AVR), and 25 states and D.C. are considering AVR. To make this reform as inclusive as possible, states must strive to utilize other public agencies in addition to the state motor vehicle department to make AVR available to those who do not possess a driver’s license.
Voting rights restoration
Over five million Americans are blocked from voting due to felony disenfranchisement laws. Yet between 1996 and 2015, the trend among many states has been to pass laws intended to lift some, or all, voting restrictions for people that have been convicted of a felony.
- In Maryland, the State General Assembly passed a bill in April 2015 that would restore voting rights to an estimated 40,000 people. Governor Larry Hogan vetoed the bill one month later. In January 2016, Maryland’s House of Delegates voted to override the governor’s veto, and the Maryland Senate did the same in February. State advocates are helping citizens restore their voting rights ahead of the April 26 presidential primary.
- At the end of 2015, Wyoming passed a bill granting people automatic voting rights restoration upon their release from prison. African Americans in Wyoming have been disenfranchised at one of the highest rates in the country.
Election Protection 2016
The Hotlines and Field Program
The voter helpline 866-OUR-VOTE will go live for the first time this year on February 29, 2016, one day before Super Tuesday when a number of states hold primary elections for the presidential race. On the eve of Super Tuesday, voters can reach Election Protection volunteers from 10a.m.-8p.m. EST. On March 1, Super Tuesday, 866-OUR-VOTE will be live from 6a.m.-9:30p.m. EST. The bilingual 888-VE-Y-VOTA continues to be staffed year-round from 8a.m.-8p.m. EST Monday-Friday. Voters who need assistance during the primary election season in English and various Asian languages can call and leave a message to 888-API-VOTE, and a volunteer will return the call.
Election Protection will also run its voter assistance field program in a number of states, including but not limited to: Alabama, California, Florida, Georgia, Louisiana, New York, North Carolina, Ohio, Texas, and Virginia.
Highlights from the Field
In 2015, the Lawyers’ Committee worked with Dillard University and the Southern University Law Center to assist voters in Baton Rouge and New Orleans for the October 24, 2015 state primary election.
Throughout 2015, the Florida Division of Elections welcomed guidance and recommendations from Common Cause, LatinoJustice PRLDEF, the Lawyers’ Committee, and Florida state partners on clarifying election officials’ legal duty to give language assistance to eligible voters with limited English proficiency.
In our capacity as the nation’s largest nonpartisan voter protection coalition, Election Protection is standing by voters across the nation to #ProtectOurVote and ensure that all voters have access to updated information, guidance, and help during the 2016 election season.
Jennifer L. Patin, Writer/Editor, and Dr. Megan A. Gall, Social Scientist, are in the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law.
About Election Protection
Election Protection is the nation’s largest nonpartisan voter protection coalition, led by the Lawyers’ Committee for Civil Rights Under Law. Through its suite of hotlines, including the 866-OUR-VOTE hotline (866-687-8683) administered by the Lawyers’ Committee, 888-VE-Y-VOTA (888-839-8682) administered by NALEO Educational Fund, 888-API-VOTE (888-273-8683) administered by APIAVote and Asian Americans Advancing Justice-AAJC and dedicated team of trained legal and grassroots volunteers, Election Protection helps all American voters, including traditionally disenfranchised groups, gain access to the polls and overcome obstacles to voting. The coalition has more than 100 partners – including Advancement Project, Asian American Legal Defense and Educational Fund, Brennan Center for Justice, Common Cause, League of Women Voters of the United States, NAACP, National Bar Association, National Coalition on Black Civic Participation, State Voices, Rock the Vote and Verified Voting Foundation – at the national, state and local levels, and provides voter protection services nationwide. For more information about Election Protection and the 866-OUR-VOTE hotline, please visit: www.866ourvote.org.