FairVote Feed: Voting Rights

FairVote's Leadership on Right to Vote

Mon, 20 May 2013 12:31:26 -0700

May has been a big month for FairVote's work advancing a right to vote in the Constitution. In Congress, representatives Mark Pocan and Keith Ellison introduced bill for a right to vote amendment along lines that we have recommended, featuring quotes from FairVote in their news release.

Locally, our hometown of Takoma Park (MD) became the first to pass a resolution in support of a constitutional right to vote and is making concrete commitments to expand suffrage and boost turnout. One significant change: Takoma Park will become the first city in the United States to extend voting rights to residents after they turn 16.

FairVote news release and Rep. Pocan press release on right to vote amendment
The Nation's John Nichols on amendment, with Rob Richie quote
Takoma Park's right to vote resolution and FairVote's Promote Our Vote project
Rob Richie's Huffington Post article on Takoma Park's voting rights advancements

The Next Step in Expanding Democracy?

Mon, 20 May 2013 09:21:37 -0700

Recently, several news outlets have noted a new expansion of suffrage in one small city in Maryland. On May 13, Takoma Park, Maryland - home of FairVote - became the first city to allow residents to vote in local elections at ages 16 and 17. As detailed in a FairVote news release, it adopted this new law along with two other charter changes designed to expand suffrage, and, separately, a powerful resolution in support of an affirmative right to vote in the Constitution.

Indeed, Takoma Park is now the first city to become what we call a "participation city" in our new Promote Our Vote project. Participation cities (and participation campuses) pass Promote Our Vote resolutions calling for a right to vote in the U.S. Constitution and creating a task force to review electoral laws and policies. The voting age change was part of this initiative, given evidence gathered by the council about its likely positive impact on how many young people take advantage of their first opportunity to vote.

As more localities debate Promote Our Vote resolutions, the conversation about who is included in the community of suffrage will expand. Age is not the only line that may be reevaluated. For example, Takoma Park also expanded suffrage rights for all residents after they have served their time in jail, joining a practice of many states. Another is whether citizenship status should be critical to exercising the fundamental right of suffrage.

Unlike voting at age 16, allowing all residents to vote, irrespective of citizenship, is not new. From the Founding until 1926, 22 states and federal territories permitted noncitizens to vote in local, state and even federal elections. And of course citizenship has never guaranteed the right to vote either: for example, female citizens prior to 1920 could not vote in most states.

Even today, several communities continue to allow anyone to vote in local elections who has lived there, based on the notion that if a person lives in a community, works there, pays taxes, and otherwise has a real stake in local government, they should be allowed a voice in how that government is run. Six of those communities are in Maryland - including Takoma Park.

Key arguments made in favor of the change include:

Individuals should have a say in the laws that govern them;
We need to close the gap between local government and the people it serves; and
Immigrants make enormous financial, social and cultural contributions.

FairVote does not have a position on non-citizen voting beyond believing that communities should debate the issue with an open mind.

A strong coalition has formed to promote the issue in New York City, led by the group IVote. On May 9th the New York City local government held hearings on legislation to allow legal, non-citizen residents to vote in its local elections. A large majority of the city council has endorsed the change.

I went to New York City to testify both as to our position on suffrage as a fundamental right and to provide descriptions of the Maryland experience on election administration of noncitizens voting. In preparation for my testimony, I conducted interviews with town clerks and managers in several of the Maryland cities that allow non-citizen residents to vote. None of them reported any controversy over the practice or any attempt at repeal. Takoma Park even reported wariness about consolidating local and congressional elections because it would complicate the practice (no city allows non-citizens to vote in federal elections, as doing so would violate federal law). These cities use a separate voter registration form and maintain a separate voter roll for non-citizen voters, but on Election Day the rolls are consolidated so that no one knows whether a particular voter is a citizen or not - only whether they are properly registered to vote for that election.

This discussion takes on special relevance when viewed in the context of the right to vote as a fundamental right. When seen in that light, any question of suffrage is not "should [group] be allowed to vote?" but rather "should [group] continue to be denied the fundamental right to vote?" For this reason, FairVote recommends that communities consider these changes in the context of the Promote Our Vote movement for an affirmative right to vote in the U.S. Constitution. In that way, all questions are grounded in principle, not politics.

To find out about introducing a Right to Vote resolution in your community or campus, visit http://www.promoteourvote.com.

Takoma Park Promotes the Vote: Will More Cities, Campuses and Organizations Take Action?

Mon, 15 Apr 2013 08:52:21 -0700

Last night, the Takoma Park city council passed a charter amendment by a 6-1 vote on first reading that, if approved when before the council again in the coming month, will be in the best tradition of cities and states leading the nation in advancing voting rights. It would establish same-day voter registration and extend voting rights to residents after they turn 16 and after incarceration. Here's why we think it's important.

FairVote's motto is "respect for every vote and every voice." Our reforms are grounded in the belief that bringing more people to the table is the best way to strengthen democracy. Elections with high turnout, real voter choice and fair representation are a nonpartisan way to help representative democracy in our nation, states and cities.

Although changing the Constitution should be an option, most of our reforms can be won by statute, such as the: National Popular Vote Plan to guarantee election of the winner of the most popular votes in presidential elections; fair voting forms of proportional representation to elect Congress and state and local legislators; ranked choice voting(instant runoff) for our single winner offices; and voting access reforms designed to provide for high rates of participation with election integrity.

The one proposed constitutional amendment we highlight is establishing an affirmative right to vote. Adding such language to the Constitution would underscore our nation's commitment to the right to vote and raise the level of scrutiny to any laws that fail to uphold voting rights.

Guided by that vision, we have designed our Promote Our Vote project to encourage immediate action in cities, campuses and organizations to put life into the goal of a constitutional right to vote through concrete action to boost turnout. As underscored by our report on mayoral elections, single digit voter turnout is all too common in city elections, with particularly stark disparities as measured by race, income, education and age.

Last year, we did a voter survey in a hotly contested special election in our hometown of Takoma Park (MD) that showed remarkable differences in who participated. Turnout was up overall from the most recent mayoral election, but was still less than 20% of registered voters. Furthermore, we found that: people of color were 74% of residents, but only 35% of voters; younger adults were 42% of residents but only 7% of voters; and people with graduate or professional degrees were 56% of voters, but only 10% of residents.

Historically, states and cities have been the laboratories of democracy in expanding suffrage and voter access. Promote Our Vote advances resolutions for cities, campuses and organizations to endorse an affirmative right to vote in the Constitution and commit to concrete actions to improve voter turnout, protect voter access when threatened and consider expansion of suffrage rights.

Takoma Park city councilor Tim Male liked the right to vote resolution. Finding a strong ally in fellow councilor Seth Grimes and support from Mayor Bruce Williams, he introduced it to his council colleagues. In so doing, the council decided to move forward on changes for this November's election. The council last night voted to approve the first reading of a charter amendment that would establish same day voter registration in city elections, extend voting rights to more people with felony convictions and make Takoma Park the first city in the United State to join what has become an international movement to extend suffrage rights to people after they turn age 16. The council may also form a task force to consider other ways to increase turnout such as a revision of the landlord code to ensure candidates have greater access to speak with tenants in apartment buildings.

These ideas came directly from councilors' experience. After Grimes introduced Election Day registration, councilors talked about spending time on the campaign trail with residents only to find out they weren't registered and it was past the registration cutoff date. With Maryland this year adopting a new law to establish same day registration during early voting, it was all the easier for the city to go one step farther. Another councilor talked about residents who wanted to vote, but could not due to being on parole or under supervision.

The idea of ensuring candidate access to residents in apartment buildings grew from candidates discussing how much easier it was to engage with homeowners in single-family dwellings than tenants in apartment buildings that were closed to them. It turns out that Minnesota has a law with proven procedures for establishing candidate access to apartments in campaign season.

The proposal to extend voting rights to people after they turn 16 may surprise some readers, but the latest research is a revelation. All evidence suggests that cities will increase turnout by allowing citizens to cast their first vote after turning 16. The reason is simple. Many people at 16 and 17 have lived in their communities for years and are taking government classes in high school. That combination results in more people exercising their first chance to vote if they are 16 or 17 than if they are unable to vote until they have left home and school.

Keep in mind that a voting age of 18 means that many people won't get a chance to vote in city election until they are nearly 20. A detailed study of voting age and voters in Denmark found that 18-year-olds were far more likely to cast their "first vote" than 19-year-olds, and that every month of extra age in those years resulted in a decline in "first vote" turnout.

Allowing 16- and 17-year-olds to vote in local elections will enable them to vote before leaving home and high school, and establish a life-long habit of voting.

Austria is among a growing number of nations like Argentina, Germany and the United Kingdom that have extended voting rights to people at 16 for national, regional or local elections. Evidence from Austria confirms that extending voting rights to people after they turn 16 promotes higher turnout for first-time voters and over time. Austria's experience also shows that 16- and 17-years-olds are ready for voting as far as making choices that accurately reflect their views.

Long-time backers of a lower voting age, like the National Youth Rights Association, make a fairness argument as well. Turning 16 has special significance in our culture. At age 16, we can drive, pay taxes and for the first time work without any restriction on hours. Many states already allow citizens under 18 to vote in Democratic and Republican primaries for president, Congress and governor. Many states like Maryland allow people to start registering to vote at 16, making it administratively easy to extend voting rights.

The idea has taken hold here. Testimony at a public hearing was overwhelmingly positive, the local Gazette endorsed a lower voting with a long editorial and letters of support have come in from our state senator Jamie Raskin (see letter), Congressman Keith Ellison (see letter) and leading scholars on youth engagement, such as CIRCLE's invaluable Peter Levine (see letter). I have little doubt that the practice will quickly spread. Indeed, already the mayor of Orange, Ohio has taken note of Takoma Park's potential action, and the one skeptic on Takoma Park's city council came up with excellent ideas of how to introduce local government and voting to young people if the amendment were adopted.

Democracy is too important to be a spectator sport. Let's vote, of course, but also consider getting directly involved in reform work. FairVote Action presents action ideas for all of our reform ideas. If you like the idea of your city, campus or organization having the kind of substantive, generative conversation on the right to vote that has taken place in Takoma Park, visit Promote Our Vote, look at its resources and take action.

The Voting Rights Act, Jerome Gray and Fair Voting in Alabama

Fri, 08 Mar 2013 08:32:54 -0800

Among the flurry of news coverage surrounding the upcoming landmark Supreme Court decision in Shelby County v. Holder, which will decide the constitutionality of Section 5 of the Voting Rights Act, one interesting man has been getting considerable attention: Jerome Gray. His story has been related in The New York Times, The Huffington Post, and other publications.

A 74-year-old black Alabama local and civil rights advocate, Jerome Gray has had a remarkable career as a community organizer, including work for years at the Alabama Democratic Conference. In that role he worked regularly with FairVote, including helping FairVote for a time as a member of an advisory committee on our organizing and outreach.

Mr. Gray has voted in every election since 1974. Yet prior to the 2012 general election, a county official improperly removed his name from the voting rolls - along with some 500 other names, all in a small town with a population of only about 4,000, 63% of whom are black. A three judge panel ruled the purging of names from the rolls illegal in a decision invoking the Voting Rights Act.

Alabama has a long history of Voting Rights Act activity. Shelby County, Alabama initiated the lawsuit now before the Supreme Court, and Jerome Gray recalls seeing white men in the beds of trucks photographing black voters as they came out to vote as recently as 2008. But Alabama is also home to many of the Voting Rights Act's greatest successes, especially in those towns and counties that have chosen fair voting as a preferred way of guaranteeing an undiluted vote to their African American and Latino populations - highlighted by Dillard v. Crenshaw County, a voting rights case pursued in 1985 that resulted 32 uses of cumulative voting and the one vote system, which has often has been called "limited voting," a name that unfortunately fails to communicate its capacity for expanding representation while ensuring that everyone has the same number of votes.

We recently wrote about the use of fair voting in Calera, the town whose illegal redistricting directly led to Shelby County filing suit against Attorney General Eric Holder in his official capacity. When Calera's redistricting scheme was found to be illegal, they adopted the one vote form of fair voting, allowing the same level of representation for African Americans as under a majority-minority district plan, but without the need for any line drawing. But Calera is far from alone. In fact FairVote hosts a booklet about the use of fair voting throughout Alabama, written by none other than Jerome Gray.

Fair voting in Alabama dates back to the 1980's, when local activists fought for it as the best option for remedying racial minority vote dilution present in so many Alabama localities, and it continues to be effective today. Chilton County, Alabama continues to elect its county commission using cumulative voting, and it has elected a black representative every cycle since its adoption. Fair voting in Chilton County has helped political, as well racial minorities, as demonstrated by the election of Democrat-turned-Independent Tim Mims to the Chilton County Commission in 2008 (Mims has since become a Republican and was re-elected in 2012).

As Jerome Gray wrote in his booklet for FairVote and the now-defunct Southern Regional Council, "thirty-two different governing bodies use some form of [fair voting]." Most use the one vote system, with a few using cumulative voting. FairVote has paid particular attention to Alabama and those working for fair voting there. Back in January, FairVote Voices, the podcast for FairVote, interviewed Ed Still, a local civil rights attorney who has worked for such systems to protect voting rights.

Although much of Gray's work involved making sure local community's changes to single member districts resulted in effective opportunities for African Americans in Alabama, he saw great promise in expanding opportunities for representation in fair voting. He wrote:

The advantages of alternative voting systems as they have worked in Alabama are enumerated below:

1. They eliminate the requirement of jurisdictions having to redistrict themselves every ten years after a census is taken as is required of single-member district localities.

2. They eliminate numbered places and the majority vote requirement which is commonplace throughout the South. There are no runoff elections. ...

3. Minority candidates and women often benefit greatly from these systems because they allow minority and women voters to "plump" their limited or cumulative votes in a block in support of candidates that they prefer. Moreover, minority and women candidates are not viewed as running against each other or against specific incumbents.

4. The electability of good candidates under these systems is not skewed unduly toward incumbents, candidates with the most money, or those with the best business and professional ties.

5. Strong minority candidates are able to win under these systems, even with less resources and political connections.

6. It facilitates the establishment and/or use of voting centers for local elections, cutting down on the number of voting places required for elections in single-member district jurisdictions.

7. It saves jurisdictions a lot of money in that no runoff elections are required. Money is saved on printing costs for ballots, setting up voting machines and paying poll officials. It saves money for the candidates, too, because they don't have to spend additional money campaigning in a runoff.

8. In the long run, it saves money for the jurisdictions. They will never have to pay lawyers and demographers to assist them in drawing redistricting plans to submit to the Department of Justice for preclearance, nor will they have to pay out any money to lawyers, demographers and experts to defend the fairness of their alternative voting system in court.

9. In small, less populated jurisdictions, these systems generally improve or increase the potential pool of good minority candidates to run and win simply because they do not restrict, or limit winnable candidate selection to the majority black district(s) as is often the case in single-member districts.

10. All the minority voters throughout the jurisdiction (in the city or county) always have the opportunity to vote and help elect the minority candidate(s) of their choice. Under a single-member district system, minority voters who live outside the majority black district(s) cannot help elect the minority candidate(s) of their choice for the simple reason that they aren't residents of the majority black district(s).

11. Preparing and publishing voters' lists, as required by law in Alabama, is made simpler because the alphabetical list does not have to be subdivided for poll officials to determine who is eligible to vote in a given district.

12. The printing and distribution of maps and the training of map readers to help educate voters, poll workers and election officials as to the location of district boundaries and knowing what voting precincts are within each single-member district becomes moot when alternative voting is used.

The benefits of fair voting for achieving voting rights goals have been noted outside of Alabama as well. Cambridge, Massachusetts has used choice voting to elect its city council since 1941, with some noting that the system promoted the representation of racial minorities and promoted racial harmony not seen in other parts of the country. Indeed, Cincinnati, Ohio formerly used choice voting, and the Kerner Commission in 1968 noted that the subsequent racial unrest and ultimately violence may have stemmed from Cincinnati's repeal of the system and the subsequent decline in African American representation.

In fact, Section 5 of the Voting Rights Act has generally made it more difficult for jurisdictions using fair voting to repeal the system and return to suppressive winner-take-all elections that dilute the votes of racial minorities. The New York Times today has an important article about the role of Section Five in New York City, but does not mention that the last time the Department of Justice denied preclearance to voting change in New York was related to fair voting: when New York City attempted to repeal the use of choice voting for its school board elections, the Department of Justice denied the repeal preclearance under Section 5. And opponents of fair voting have noted that its repeal would be easier if Section 5 did not prevent them from changing their laws in ways that would dilute the votes of racial minorities.

It should therefore be no surprise that FairVote and advocates like Jerome Gray both support the Voting Rights Act in its entirety and support the use of fair voting at every level of government.

Right to Vote in the Spotlight

Fri, 01 Mar 2013 10:36:34 -0800

The Supreme Court heard oral arguments in an important case involving the Voting Rights Act, while FairVote is stepping up its campaign for Congress to uphold federal law and stop blocking commissioners to be seated on the Federal Election Commission. We're also excited about our new Promote Our Vote campaign designed to generate local actions to expand and protect suffrage. See:

FairVote's Promote Our Vote campaign

Overview of Shelby County case on Voting Rights Act

Put commissioners on the Election Assistance Commission

Shelby County's history with fair voting

Report on Voter ID laws fudged turnout data

The Daily Show skewers opponents of the Voting Rights Act

NEW: March 2013 articles call for constitutional right to vote in The Nation and Democracy

True The Vote Fudges the Numbers in New Turnout Study

Thu, 28 Feb 2013 15:44:37 -0800

Within 13 hours of posting this blog, True the Vote changed its report to delete all references to its voter turnout findings. Its authors instead put in a single sentence: "After new data being made available regarding 2012 turnout rates, True the Vote is currently reassessing its methodology for comparing the impacts voter ID laws. This report will be updated shortly." To read the now-deleted original report, click here. Given the initial coverage of the report's findings on voter turnout, such as at Breitbart.com, we hope that True the Vote will apologize more directly for its error in its updated report. We also are puzzled about its reference to" new turnout data", as Michael McDonald's report on 2012 voter turnout (analogous to his 2008 data used by True the vote) has been available for weeks.

True the Vote, an organization dedicated to eradicating voter fraud through controversial methods, issued a report on February 27 concluding that voter ID laws and other election changes allegedly meant to reduce voter fraud not only did not have an adverse impact on turnout in the 2012 elections, but may have helped to increased turnout. Its findings have been trumpeted by many news outlets who do not believe such laws suppress voter turnout.

But it turns out the report’s authors made a huge methodological mistake. They compared turnout of eligible voters in 2008 to turnout of registered voters in 2012. Correcting this error reverses their findings. All but one of the states with these new laws experienced a decline in voter turnout, and most experienced a decline greater than the national turnout decline from 2008 to 2012.

Take Florida, for example. True the Vote addressed the claim made by Ohio State University professor Theodore Allen that long lines on Election Day deterred as many as 201,000 Florida voters from reaching the polls. It claimed that Florida’s voter turnout actually increased by 4.9 percentage points (to 71.5%). In reality, Florida’s turnout decreased by 2.6%, dropping from 66.6% in 2008 to 64.0% in 2012.

True the Vote used numbers that skewed their results in their favor when analyzing turnout in every single state they tested. Here’s how the report’s authors explained their methodology: “Data demonstrating 2008 voter participation rates was furnished by George Mason University, calculating turnout based on Total Voting Age Popular (TVAP), [subtracting] those deemed ineligible to vote according to respective state laws. This report calculated 2012 TVAP utilizing current estimates from the U.S. Census Bureau.”

Basing 2008 turnout calculations on the work of George Mason University’s Michael McDonald is a good decision. A highly respected scholar, McDonald calculates turnout of eligible voters by dividing the number of ballots cast in a state by the number of people who are eligible to vote in a given election (the voting eligible population). Using this method, McDonald found Florida’s voter turnout to be 66.6% in 2008 and 64.0% in 2012.

True the Vote, however, compared McDonald’s 2008 turnout numbers with a very different measure for 2012 turnout: the turnout found by dividing the number of ballots cast by the number of registered voters in 2012, rather than the number of eligible voters. Because there are fewer people registered to vote than there are people who are eligible to vote, the registered voter turnout using this calculation is significantly higher than eligible voter turnout.

Some of the differences were even more skewed than in Florida. In Georgia, where turnout in 2008 was 62.7%, True the Vote claimed that turnout increased by 9.5 percentage points, to 72.2%. In fact, using Michael McDonald’s turnout measures for both elections, Georgia’s 2012 turnout was only 58.7%, a four percentage point decrease from 2008 and a full 13.5 percentage points lower than True the Vote’s claim.

Here are other examples of True the Vote’s errors:

State	True the Vote's 2008 turnout (eligible voters)	2012 Registered Voters	2012 Vote Totals	True the Vote's 2012 turnout (registered voters)	GMU 2012 turnout (eligible voters)
Alabama*	61.0%	3,166,202	2,074,338	65.5%	58.9%
Florida*	66.6%	11,934,446	8,538,264	71.5%	64.0%
Georgia*	62.7%	5,428,980	3,939,355	72.6%	58.7%
Kansas*	63.5%	1,771,252	1,182,771	66.8%	58.1%
Maryland	67.8%	3,693,600	2,714,600	73.5%	66.2%
Pennsylvania	64.2%	8,504,410	5,736,359	67.5%	59.4%
Tennessee*	57.4%	4,013,242	2,478,870	61.8%	52.6%
Virginia	67.6%	5,428,833	3,896,846	71.8%	66.9%

* Signifies that state had an identification law that critics worries would suppress turnout.

Once recalibrated, True the Vote’s claim that states with new voter ID laws, enacted or pending, experienced an increase in turnout is patently false. When using the correct numbers, all of these states experienced a decrease in voter turnout. In fact, a majority of these states experienced a decrease in turnout greater than the average national decrease of 3.8 percentage points. In addition, every state that True the Vote listed in its chart, including states without these laws, but which the report surveyed for voter suppression complaints, experienced a decrease in turnout, except for the swing state of Nevada.

True the Vote should correct this error and explain that voter turnout in fact decreased in these states. This is not to say that this turnout decline was necessarily because of these new laws. Every state True the Vote surveyed that experienced a turnout decrease greater than the national average was also either an ignored spectator state or a state that experienced a sharp decrease in presidential campaign attention between 2008 and 2012. But to contend the turnout in these states increased, and that somehow voter ID laws are to thank for this increase, makes True the Vote’s findings not very true at all.

Written with FairVote's executive director Rob Richie.

FairVote Agrees: Preserve the Voting Rights Act

Tue, 26 Feb 2013 13:50:14 -0800

The Supreme Court heard oral arguments today in the case of Shelby County v. Holder, the challenge to the constitutionality of Section 5 of the Voting Rights Act (VRA). Section 5 is critical to the protection of voting rights in the U.S., and FairVote agrees with leading civil rights organizations that Section 5 is necessary to ensure that discriminatory voting practices are not implemented in the places where the risk is highest. We also question the value of any immediate judgments about what the Court may do in the Shelby case, given how many legal authorities were wrong when predicting the Court would strike down Section 5 and associated provisions in a 2009 challenge to the Act.

As background, nine states and additional local jurisdictions in seven states are covered by Section 5 based on a coverage formula tied to statistics on minority voter turnout in covered jurisdictions. One state covered by the Act is Alabama, including Shelby County. Covered jurisdictions must “preclear” proposed election law changes with federal officials, and this system, known as preclearance, is at the heart of Shelby County’s challenge.

Plaintiffs argue that preclearance is no longer necessary in covered jurisdictions because increases in racial minority voters and elected officials show that discrimination is no longer prevalent or concentrated in covered areas. Plaintiffs also argue that voting discrimination, when it does exist, is no more prevalent in covered jurisdictions than nationwide, and that a coverage formula (which was initially developed using election data from the 1968, and 1972 presidential elections) is outdated. As Drew Spencer and Rob Richie explained last week, however, actions taken a few years ago in the city of Calera in Shelby County underscore the value of Section Five.

29 civil rights organizations submitted an amicus curiae brief to the Supreme Court, arguing for the constitutionality of maintaining Section 5. The brief states, that “while many of these [covered] jurisdictions have made substantial progress toward eliminating discriminatory voting practices, the legislative record amassed by Congress, as well as more recent history, shows that these gains are fragile and that discriminatory practices still persist.” FairVote agrees with these civil rights organizations, and echoes the need for Section 5 to be upheld.

While Shelby County argues that Section 5 is unconstitutional, Congress in fact acted within its power under section 2 of the 15th Amendment when it reauthorized the VRA. Spencer Overton, a Professor of Law at The George Washington University Law School, sums up the constitutionality of Section 5 quite well. Writing for SCOTUSblog, he stated, “Congress acts at the height of its authority when it legislates to protect voting rights.” Specifically, he wrote, “the Fifteenth Amendment empowers Congress to use ‘any rational means’ to prevent voting discrimination. And the Fourteenth Amendment gives Congress the authority to enact laws that are ‘congruent and proportional’ to prevent constitutional harms, and gives Congress greater leeway when protecting fundamental rights like voting.” Section 5 of the VRA is clearly in place to legislate to protect voting rights, and as such, should be protected.

Commentary and analysis from other leading legal scholars underscore the case for rejecting the challenge in Shelby. Jamie Raskin, a professor of constitutional law at American University’s Washington College of Law and a State Senator in Maryland, has outlined the need for Section 5 based on the fact that section five is an effective prophylactic measure, and that “hundreds of plans and thousands of proposed [election law] changes have been rejected, preventing backsliding in the project of strong interracial democracy, even as more than 99% of submitted plans are approved routinely after submission.” Sen. Raskin makes it clear that Section 5 is not overbroad, and is, in fact, working in a limited fashion to prevent the most egregious forms of voter disenfranchisement from becoming law.

Myrna Perez, Senior Counsel at the Brennan Center for Justice, calls the voting rights act a necessary and important tool, “and also a symbol of our nation’s struggle and commitment to safeguarding the most fundamental right of American democracy.” She is right. The right to vote is essential for a truly representative democracy, and legislation implemented with widespread support in Congress to enhance this right should be upheld.

The Role of Fair Voting Systems in the Shelby County Case

Thu, 21 Feb 2013 13:37:50 -0800

On February 27, the U.S. Supreme Court will hold oral arguments in the case of Shelby County v. Holder, reviewing the constitutionality of Section 5 "preclearance" provisions of the Voting Rights Act. A largely overlooked part of the case is the fact that Section 5 was the reason that Calera, a growing city in Alabama's Shelby County just south of Birmingham, adopted one of the fair voting systems we recommend to uphold voting rights.

Grounded in the 14^th and 15^th amendments to the Constitution, Section 5 requires that states and jurisdictions with a history of discriminatory voting laws (covered jurisdictions) "preclear" any changes to their election laws with either the Department of Justice or a panel of judges in Washington D.C. The new laws can then only go into effect if the covered jurisdiction can demonstrate that the voting rights of racial minorities will not be adversely affected by the proposed changes. Preclearance is effective for stopping the most discriminatory laws from even going forward, as over 99% of DOJ reviews result in preclearance.

Soon, the Supreme Court will consider whether counties like Shelby still deserve this oversight. Defenders of these provisions have done a remarkable job assembling and making arguments that Section 5 is absolutely appropriate - and that the Court should respect the other branches of government, given that Congress overwhelmingly extended Section 5 protections (including securing unanimous support in the Senate) in a 2006 bill signed into law by George W. Bush. We anticipate that the weight of evidence will result in the Court upholding Section 5 as constitutional - just as D.C. Circuit Court did, and as the Supreme Court has done in previous challenges in 1966, 1973, 1980, and 1999.

The case stems from events in Calera, a city in Shelby County where Section 5 played a key role. In elections prior to 2008, Calera elected its city council from single member districts, including one district in which the African American population was large enough to elect a candidate of choice. Here's how Ari Berman tells it in important new article in the Nation about the challenge to the Voting Rights Act:

Calera, a once-sleepy town from which the lawsuit stems, is fifty-five miles north of Selma. Best known for its Heart of Dixie Railroad Museum, Calera became the fastest-growing city in the state over the past decade....

Before local elections in 2008, Calera redrew its city boundaries. The black voting-age population had grown from 13 percent in 2004 to 16 percent in 2008, but the new maps eliminated the City Council's lone majority-black district, represented by Ernest Montgomery since 2004. The city decreased the black voting-age population in Montgomery's district from 71 to 30 percent by adding three overwhelmingly white subdivisions while failing to include a large surrounding black neighborhood.

A day before the election, the Justice Department objected to the change. Calera could have preserved the majority-black district, the city's demographer told Washington, but the City Council chose not to. Calera held the election in defiance of Justice Department orders, and Montgomery lost by two votes....

The Justice Department negated the election results and, after a year of negotiations, Calera moved from single-member districts to an at-large election system for the City Council. Montgomery was easily elected under the new system, winning the largest number of votes of any candidate, while his opponent from 2008 received the second-fewest. After the two elections, "I realized how important Section 5 is," Montgomery said.

Berman's account glosses over one key detail: the role of fair voting. Montgomery did not win in an at-large election held with winner-take-all rules. Instead, Calera entered into a consent decree with the Department of Justice to adopt a fair voting system that greatly expanded the number of voters well-positioned to elect someone. In this alternative to winner-take-all, every voter cast one vote in the election for six seats.

Here's why the change was so important in Calera. Under winner-take-all at-large elections, voters have a number of votes equal to the number of seats being elected, which guarantees that a slim numerical majority can control 100% of the seats on the body being elected. Under the one vote system adopted by Calera, six council seats were elected, and each voter cast one potent vote, ensuring that each candidate must be elected by a smaller distinct bloc of voters, instead of one majority voting bloc electing every candidate.

Sometimes misleadingly called "limited voting" due to voters having fewer votes than seats, the system in fact means "expanded democracy" because it increases the number of voters able to elect a candidate. Like-minded voters in the majority are likely to elect most seats - but not all seats. That's how, grounded in strong support in the African American community, Ernest Montgomery could regain his seat in November 2009 earning nearly 20% of all votes cast, more than any other candidate. He was re-elected in August, 2012, finishing third in another race for six seats, this time with 13%.

Fair voting has been used throughout Alabama to settle cases brought under the Voting Rights Act. In fact, Calera is only partly in Shelby County; it is also partly in Chilton County, the Alabama County which has become famous for using another version of fair voting for electing its county commission and school board since 1988 -providing fair representation for both those in the majority and minority.

Without Section 5, Thompson would have lost that 2008 election, and the only recourse for voting rights advocates would have been to mount a lawsuit under Section Two of the Voting Rights Act - an expensive proposition. Because fair voting empowers minority voting groups, including racial minority voting blocs, Section 5 preclearance prevents opponents from repealing it where doing so would undermine the voting power of racial minorities. For example, in 1999, the Department of Justice declined preclearance for New York City's attempt to repeal the use of choice voting in its 32 local school board elections that had by far the more representative elected officials in the City.

Today, Beaufort County (NC) also uses the one vote system due to an agreement to settle a Section 2 lawsuit, and it also has boosted opportunities for African American candidates who are candidates of choice. It also has provided a fair balance of partisan representation, with Republicans today having four seats and Democrats three. Instructively, Beaufort County opponents of fair voting have noted that switching away from fair voting would be easier if the Voting Rights Act did not prevent them from effectively disenfranchising racial minorities. Such actions could be far more widespread in the hundreds of jurisdictions using single member district systems where redrawn districts could weaken minority voting rights.

No matter what happens in the Shelby County case, we should think about how we can provide fair representation for all, shifting toward a paradigm of open access to voting and electoral systems that always guarantee fair representation for all segments of society. If fair voting were the norm rather than the exception, we wouldn't need the courts and DOJ to step in to stop unfair district plans if we didn't rely on winner-take-all systems that are not designed to be fair to those in the minority.

We're not sanguine about our elected officials rushing to change the rules that elected them, but it's time for the nation to reach consensus that all of us deserve a fair chance to have a seat at the table of representation - indeed, that "representative democracy" requires such an outcome to be worthy of the name.

To see how fair voting could look in your state in congressional elections, visit our map of fair voting plans for all 50 states at FairVoting.US.

Who Needs to Fix That? We Do.

Mon, 07 Jan 2013 06:49:26 -0800

When President Barack Obama paused in his victory speech, thanking voters for waiting in long lines to vote but noting 'we have to fix that', one might have assumed that reform would come from the top. Within a few weeks, Representative George Miller (D-CA7) introduced the SIMPLE Voting Act to ease ballot access and increase turnout. Mirroring his proposal was Senator Christopher Coons (D-DE) with the FAST Voting Act (S. 3635) intended to provide incentives for States to invest in practices and technology to expedite voting at the polls and simplify registration. Both bills were immediately referred to their respective House and Senate committees where they stayed until they became null and void with this week’s swearing in of the 113th Congress.

While I’m happy to see Federal law makers introducing electoral reform legislation clearly written to help voters, policies expanding registration and easing ballot access, unfortunately do not rank high on Congress’ agenda. In fact, as this presidential election has shown, interested parties seem inclined to take advantage of the decentralized and disorganized system for partisan gain. Little is done at the national level to curb such behavior, and affected voters have weak legal foundation to right these wrongs. We can’t even get Congress to confirm nominees to the Election Assistance Commission, which hasn’t had a full commission in years.

Voting rights and rules are in fact largely determined at the state and local level, and national legislation tends only to suggest change and provide appropriate incentives. A national affirmative commitment to the right to vote would lay the foundation for consistent voting rules nationwide. While this change is necessary and important for ensuring the protection of the right to vote, it will take time.

What's a frustrated voter to do?

In fact, the inertia at the federal level as well as the absence of overarching electoral rules is actually an opportunity for electoral reform now, in the places where it is most needed. Since electoral rules are set by states, counties and cities – and with the latter on the front lines of engagement with voters -- we have the ability to propose changes to their city councils or state legislators in ways that truly benefit voters. Resolutions at the local level can extend early voting, increase polling places, call for pre-registration for 17-year-olds, and push the boundaries of current legislation. Between November 2012 and the next national election in November 2014, hundreds of local elections will take place, giving localities plenty of opportunities to experiment with new, progressive and positive electoral rules, all the while working to increase turnout in all elections.

With PromoteOurVote.com, FairVote has developed three proactive campaigns designed to fulfill the President's mandate of 'we need to fix that', starting with local grassroots action.

1) Local City and County Resolutions

Passing a local right to vote resolution, complete with steps to improve voter turnout, protect voters, and expand knowledge about voting procedure and policies, corrects the ineptitudes of current electoral rules while bringing attention to the importance of passing an affirmative right to vote amendment at the national level. Our local right to vote resolutions are designed for local government bodies: city councils, county commissions or school boards. The resolutions pledge to examine local electoral rules, as well as revise and expand the language to better reflect voter needs.

2) Local Campus Resolutions

Political actors often stress the importance of the youth voter, yet little is done to redress the difficulties facing college voters. Local resolutions committing to concrete actions to ease registration, clarify absentee ballot use and increase polling locations would certainly result in increased voter turnout on campuses.

3) Organization Resolutions

Community organizations are often the force behind societal and political change. Currently in development, this resolution commits local organizations and chapters such as church groups or rotary clubs to participate in similar activities as the city and campus resolutions.

With these resolutions beginning at the local level and designed for voters to experience free, fair and accessible elections, voters can respond to voter disenfranchisement and election-day obstacles with, "Yes Mr. President, we certainly can fix that." At the very least, attention will be brought to the highly decentralized nature of our electoral system, and voters can make changes that positively affect their voting experiences. Through the efforts of Americans nation-wide, we can also highlight the need for a stronger foundation for America's most basic and important form of civic engagement: voting.

We are sure that FairVote supporters and volunteers will recognize the importance of this movement and realize the idea by generating action nationwide to fix our electoral system for all eligible voters.

Find out more and download a free toolkit at PromoteOurVote.com and FairVoteAction.org

A Representative Congress: Enhancing African American Voting Rights in the South with Choice Voting

Tue, 27 Nov 2012 14:46:30 -0800

In southern states, racially polarized elections remain an active part of political life. Since 1965, the Voting Rights Act has guaranteed that African Americans in the South cannot be shut out of elections either through direct barriers to voting or through discriminatory districts that prevent the achievement of representation. It transformed suffrage rights and representation in legislatures across the South, with a leading instrument being creation of "majority-minority" districts - ones in which racial minorities gain representation by virtue of making up the majority of the population within some district.

However, relying on winner-take-all elections has inherent limitations. In the belt of southern states including Louisiana, Mississippi, Alabama, Georgia, and the Carolinas, the use of districting to achieve a fairer level of representation for African Americans has hit a ceiling. While redistricting in 1991 contributed directly to election of seven new African American Members, the total number of African American Members did not change this year.

To push through that ceiling and achieve truly fair representation, FairVote recommends abandoning the single-member district in favor of super districts elected by choice voting. Under choice voting, voters rank candidates in order of preference by whatever criteria they think important, and those preferences then are used to elect candidates in proportion to their popular support without wasting excess votes for standout candidates guaranteed to win or protest votes for candidates sure to lose. With a long history of use in local elections in the United States, choice voting has resulted in fair representation for political and racial minorities.

Louisiana currently has six House districts and exactly one majority-minority district, with every other district having more than 60% white voters and a Republican Members. However, African Americans make up nearly one third of the voting age population of Louisiana. Under our fair voting plan using choice voting in two districts with three Members each, African Americans in Louisiana would have the opportunity to elect two candidates of choice by being above the quarter of the vote needed to win one of three seats.

Similarly, African Americans in Alabama, South Carolina, and North Carolina would have enhanced opportunities to elect candidates of choice. Here is a chart contrasting current African American representation in Congress and shares of the voting age population living in district with a clear opportunity to elect preferred candidates with what it would be with adopting of choice voting in super districts of three, four or five districts:

State	Louisiana	Mississippi	Alabama	Georgia	South Carolina	North Carolina
Seats / Superdistricts	6 / 2	4 / 1	7 / 2	14 / 4	7 / 2	13 / 3
Majority-minority Districts (Currently)	1	1	1	4	1	2
Candidates of Choice Under Choice Voting	2	1	2	4	2	3
*African American Voting Strength (Currently)**	32%	43%	35%	40%	30%	19%
*African American Voting Strength Under Choice Voting**	100%	100%	100%	100%	100%	100%

* Measures percentage of African Americans living in district where power to elect a preferred candidate under conditions of racially polarized voting

Note that the number of seats held by African-American preferred candidates would likely increase by four total. More dramatically, the number of African Americans in a direct position to elect preferred candidates would soar from well under half of African American adults to 100% of them - including those African Americans who prefer to vote for Republicans.

This enhanced power can also be true in parts of other states with the same character; for example the eastern edge of Texas is composed of five white-majority districts which, if combined into a single super district using choice voting, would permit the election of a racial minority candidate of choice. In much of this region, African Americans make up a sufficient proportion of the population to earn greater legislative representation, but they are not geographically segregated enough to be drawn into majority-minority districts, making a proportional system the only option for breaking past their current ceiling.

Even in racially polarized states with an insufficient population of racial minorities to gain actual representation, choice voting would guarantee that racial minorities could influence the outcome in a meaningful way. For example, in Arkansas, every congressional district has over 70% white voting population. Given that each representative is elected on a winner-take-all basis, it is therefore not surprising that in 2012 every one of its four districts elected a white Republican. With choice voting, racial minorities still would not compose enough of Arkansas' population to elect a candidate of choice with their votes alone, but choice voting gives you the power to indicate backup choices whom you might help win if your first choice is defeated. African Americans Democrats would have sufficient numbers to influence elections by joining in cross-racial coalitions of voters able to elect at least one candidate more reflective of their policy preferences.

And significantly, choice voting would guarantee that every African American voter - in fact every voter, period - could point to an elected legislator that he or she helped elect. As our table shows, even in states like Georgia, which are currently able to have enough majority-minority districts to elect a fair number of racial minority candidates of choice, most African American voters do not live in those majority-minority districts. Most racial minority voters in the South must currently be satisfied with so-called "virtual representation," in which candidates they favor are only elected in districts they do not themselves reside in. For example, in North Carolina, only 19% of African American adults live in one of the two districts where African Americans have sufficient voting power to elect a candidate of choice. Under choice voting, 100% of African Americans would live in a district with an African American candidate of choice in every state within this southern belt.

In an ideal world, racially polarized voting would not occur and candidates could be defined by their responsiveness to people based on their ideas rather than their identities. But we're not in that world yet, as made plain by such facts as the U.S. Senate not having any African American Members. The first step in that direction requires ensuring that racial minorities cannot be denied a voice. A second step is to encourage voters to think beyond their first choice when indicating backup preferences second and third. The use of majority-minority districts led to much more racial minority representation in legislative bodies, but it has hit an impasse - and has thus far been limited in its reliance on "virtual representation" and acceptance of winner-take-all rules that always deny representation to many people. To continue moving forward requires something new. Choice voting represents a race-neutral and constitutional means of electing a body that fairly represents the population however they may choose to vote.