Law Commons^™

Voting Matters, Wendy K. Mariner

Faculty Scholarship

Elections have consequences—especially for civil rights, social justice, and human rights.

The year 2020 brings another round of elections for president, legislators, governors, secretaries of state, attorneys general, district attorneys, mayors, city council members, school committee members, and even judges. Our elected officials and their appointees decide who pays how much in taxes, what our taxes pay for, what kind of education our children get, what counts as a crime, what agricultural products are subsidized, what the minimum wage shall be, how to conduct the census, who is eligible for Medicaid, SNAP, and WIC benefits, who is admitted into the …

Republicans And The Voting Rights Act, Michael T. Morley

Scholarly Publications

No abstract provided.

Slouching Toward Universality: A Brief History Of Race, Voting, And Political Participation, Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Unmistakably Clear: Human Rights, The Right To Representation, And Remedial Voting Rights Of People Of Color, Matthew H. Charity

Faculty Scholarship

The Author critiques the Supreme Court’s analysis in its Shelby County v. Holder decision, which found the preclearance requirement of the Voting Rights Act unconstitutional by applying a disparate treatment analysis to how States were treated under the Act. Such a reading of the Act makes a number of tacit and explicit assumptions with regard to the choice by the Federal Government and by the States of whose rights governmental actors must protect. The Court reached its conclusion by decontextualizing the Civil Rights movement and the Voting Rights Act from decolonization and post-World War II expressions of human rights, a …

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

Race, Federalism, And Voting Rights, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated "basic principles" of federalism. Unfortunately, the Court failed to articulate the costs to federalism imposed by the Act, much less conduct a cost-benefit analysis in order to determine whether the benefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter …

Powers And Rights In Shelby County V. Holder, Corey Brettschneider

Schmooze 'tickets'

No abstract provided.

The Causal Context Of Disparate Vote Denial, Janai S. Nelson

Faculty Publications

For nearly fifty years, the Voting Rights Act of 1965 ("VRA") and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. Modern vote denial practices that have a disparate impact on minority political participation, however, increasingly fall outside the VRA's ambit. As judicial tolerance of disparate impact claims has waned in other areas of law, the contours of Section 2, one of the VRA's most powerful provisions, have also narrowed to fit the shifting landscape. Section 2's "on account of race" standard to determine discrimination in voting has evolved from one of quasi-intent determined by a …

The First Amendment, Equal Protection, And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson

Faculty Publications

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen's ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court's fundamental rights jurisprudence when it is motivated by a desire to …

Reimagining Democratic Inclusion: Asian Americans And The Voting Rights Act, Ming Hsu Chen, Taeku Lee

Publications

The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: …

Senator Edward Kennedy: A Lion For Voting Rights, Gilda R. Daniels

All Faculty Scholarship

Senator Edward Kennedy was considered the Lion of the United States Senate. He was also a Lion for civil rights, fighting for justice and equality. Passion, patience and perseverance all describe Senator Kennedy’s approach to legislation. He worked across the political ideological aisle for the furtherance of civil and human rights. His political perspective was never shaded with shadows of personal benefit.

Throughout his career, Senator Kennedy continued to champion civil rights issues, such as, voting, education, housing, and disability rights. During his almost five decades in the United States Senate, he seized many opportunities to highlight and forward the …

Defining Race: The Obama Phenomenon And The Voting Rights Act, Janai S. Nelson

Faculty Publications

This piece publishes remarks delivered at a symposium organized by the Albany Law Review and the Albany Journal of Science and Technology exploring the definition of race. The topic, “Defining Race,” is related to the recent presidential election and, in particular, to Barack Obama's successful candidacy to become the first black President of the United States. Rather than deconstruct, redefine, or explore the definition of race, these remarks explore briefly whether race relations in the electoral arena have changed to such a degree that race and race-based remedies are no longer needed, and what evidence from this presidential election would …

Protecting The Right To Vote: Oversight Of The Department Of Justice's Preparations For The 2008 Election - Statement Of Gilda R. Daniels Before The Senate Judiciary Committee, September 9, 2008, Gilda R. Daniels

All Faculty Scholarship

In 2000, we witnessed faulty voting machines with hanging chads and dimpled ballots. We also experienced error-filled purges and voter intimidation in minority neighborhoods. Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, voting irregularities and election protection and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act and the National Voter Registration Act, (NVRA), problems persist in the operation of our …

Lessons Learned From The 2004 Presidential Election: Testimony Of Gilda R. Daniels Before The House Judiciary Subcommittee On The Constitution, Civil Rights And Civil Liberties, July 24, 2008, Gilda R. Daniels

All Faculty Scholarship

Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, "voting irregularities" and "election protection" and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act, and the National Voter Registration Act, (NVRA), problems persist in the operation of our participatory democracy.

What we have witnessed since 2000, particularly during the 2004 election, gave us some reason to hope but also reason for concern. …

A Vote Delayed Is A Vote Denied: A Proactive Approach To Eliminating Election Administration Legislation That Disenfranchises Unwanted Voters, Gilda R. Daniels

All Faculty Scholarship

In an effort to determine voter eligibility and access to the voting booth, our democratic system has allowed political forces, to develop laws that would meet their aims of either granting or denying access to the franchise. Caught in this web of regulations, practices and procedures is the "unwanted voter" - the disabled, elderly, poor, and minority voter. New millennium models of exclusion, such as overly restrictive identification requirements, unwarranted voter purges, restrictive voter registration rules, increasing costs for underlying documents to support citizenship and eligibility for voting, are creating a caste system in the electoral process. The practice of …

Shaw V. Reno: On The Borderline, Emily Calhoun

Publications

No abstract provided.

Thornburg V. Gingles, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.