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The Voting Rights Act

LBJMLK One of the most important aspect of incorporating the voices of all citizens into the legislature, is guaranteeing that citizens that belong to racial and linguistic minority groups can freely and equally participate in elections.

In the U.S., no piece of legislation has been more important in ensuring voting rights to previously disenfranchised groups than the Voting Rights Act of 1965.

The Voting Rights Act of 1965 guarantees the right to vote to racial, ethnic and language minority citizens. Section 2 of the Voting Rights Act is particularly important as it prohibits minority vote dilution through tactics, legislation, situations, etc. that weaken the voting strength of minorities. It also prevents municipalities from enacting practices designed to give minorities an unfair chance to elect candidates of their choice and is enforceable nationwide. Through use of Section 2, many communities have been able to gain fair representation by implementing proportional voting systems in settlements of Voting Rights Act litigation.

Cumulative Voting, Limited Voting, Ranked Choice Voting, and the Single Vote are all proportional-type methods that either have, or are thought to have, the potential to increase minority representation (Bowler and Grofman(2000)).
In multi-winner elections, block voting has proven harmful to minority representation. In certain areas of the country, its use is banned through Section 2 of the VRA (Bowler and Grofman(2000)).

FairVote and the Voting Rights Act

In seeking fair election reform, FairVote's work is often guided by the Voting Rights Act. In several Amicus briefs and reports, we have examined how proportional type voting and other reforms are not only compatible with, but help better achieve the objectives of the VRA. A brief list of our work that has involved the VRA is below:

FairVote in July 2013 submitted testimony to the U.S. House of Representatives and U.S. Senate in response to the Supreme Court's June 2013 ruling in Shelby County v. Holder. In that case, the Supreme Court struck down Section 4 of the Voting Rights Act as unconstitutional, holding that its formula can no longer be used as a basis for subjecting jurisdictions to preclearance under Section Five of the Voting Rights Act. FairVote's testimony focuses on the importance of establishing voting rules that are intrinsically fair rather than contextually fair; in particular, we propose statutory changes to make it easier for jurisdictions to adopt fair representation voting methods.

Section 5 of the VRA: This report traces the history of the Voting Rights Act, from its origins in 1965 through its opposition and its continued renewal. Specifically, the report details how Section 5 of the Voting Rights Act requires those states covered under Section 5 to preclear all proposed voting changes, including redistricting efforts, with the Department of Justice before their enactment. The advent of the Voting Rights Act, specifically Section 5, has been instrumental in preventing states from making changes which could potentially discriminate against racial and ethnic minorities. Throughout the history of Section 5 cases before the Supreme Court, the Court has yet to rule Section 5 is invalid.

View the report here- Section 5 of the Voting Rights Act: A History and Analysis of Relevant Supreme Court Cases

FairVote Resources on the VRA

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

FairVote's Brief on Fair Representation Voting in Palmdale, California

FairVote Voices on Proportional Voting and the Voting Rights Act: Part 1 & Part 2

Amicus Brief Filed, 1999

FairVote Files Two Amicus Briefs in Port Chester (NY) Voting Rights Case

Washington DC Voting Rights

The District of Columbia occupies an unusual space in American politics. It is home to the capital of the US and the many groups,
organizations, and companies related to it. Its status as a federal enclave means that it is not a state, but is self-governing. It also means that its nearly 660,000 residents have no formal representation in Congress, and are solely represented by a non-voting House Delegate.

Unfortunately, this means residents are unable to bring grievances to influential Federal officials or reap the benefits that Senators and Representatives are able to provide.

Historically, however, DC residents have not always lacked representation. Those in DC did have formal representation in the 1790’s, but lost their right to vote for Congressmen in 1801 after the passage of the Organic Act. This occurred just ten years after the ratification of the U.S. Constitution and a mere 26 years after the famous declaration by Sam Adams, “No Taxation Without Representation". Ironically, a version on the motto became the slogan on DC license plates in 2000.

FairVote, and many other organizations such as DC Vote are working to help residents of D.C. gain meaningful representation in Congress.

For more information, visit DC Vote.

Image Source: Rich Lipski/The Washington Post

Felon Disenfranchisement

The United States has one of the highest incarceration rates of any OECD country (Manza and Uggen (2002)). It is also one of the only democracies to permanently strip felons of their right to vote (Preuhs (2001)).

infogram_0_felon_disenfranchisement_policy_by_stateFelon Disenfranchisement Policy by State//e.infogr.am/js/embed.js?zpytext/javascript

All states except Maine and Vermont take away the right to vote of a person convicted of a felony (a "felon") while they are serving in prison (Demleitner (1999)). But most states do not return a felon's right to vote after they serve their sentence. In many states, including Florida, Iowa, Virginia, and Kentucky, ex-felons face a lengthy waiting period and must appear in front of a board, and then go through a re-registration process to restore their voting rights.

The issues of felon disenfranchisement came to a head in the 2000 presidential election, where a few decisive votes in Florida determined the outcome of the election. As many newspaper outlets and advocacy groups where quick to point out, felon disenfranchisement kept a large enough group of minority citizens from voting that it most likely affected the outcome of the election (Uggen and Manza (2002, 2006) Karlan (2004) Miles(2004)).

Aside from affecting election results, felon disenfranchisement serves to keep ex-felons feeling alienated from society. Of the 5 million Americans that can not vote because of a felony conviction, more than three-quarters of them are no longer incarcerated (Manza and Uggen(2002)). For these millions of ex-felons, they are still denied one of the most fundamental parts of being American even after "paying their debt to society"—by serving their time in prison, paying the necessary restitution, or keeping to their parole conditions.

Who is Most Affected?

One growing subject of interest for both advocacy organizations and scholars is this practice of felon disenfranchisement and its disproportionate marginalization of minority populations, including racial minorities and the poor (Uggen and Manza (2002)). According to the NAACP, in 2011, over 5 million felons had had their right to vote taken away. One in 13 African-American men are unable to vote and a disproportionate number of Latinos are disenfranchised (Preuhs (2001)).

Not only does it treat the franchise as a privilege that can be revoked instead of a fundamental political (Karlan(2004)), the disenfranchisement of felons may perpetuate the long history in the United States of minority voter suppression. Karlan notes that, by disproportionately taking away the right to vote in historically politically marginalized communities, the power of those communities to affect change electorally is diminished. Robert Preuhs (2001) argues that the impacts of disenfranchisement can reverberate through communities and may "accentuate... [the] perception of illegitimacy of our legal system among minority citizens" (746).

Quantitative analysis by Thomas Miles (2004) shows that enfranchised felons are less likely to vote than their non-convicted peers, meaning that felon disenfranchisement may have had less of a role in election outcomes—including Florida in 2000—than some believe, loss of democratic legitimacy in the eyes of the most underrepresented communities is inherently problematic.

The Origins of Felon Disenfranchisement

The disenfranchisement of felons has a long history that is closely tied to the old English practice of confiscating a convicted felon's estate before he was put to death. In the United States, felon disenfranchisement was used by Southern states in the Jim Crow Era, and was combined with poll taxes, literacy tests, and other tactics to keep African-American populations from voting. In more recent times, felon convictions, especially among minority communities, increased in the 1970s as politicians focused on "law and order" and "cracked down" on crime (Harvey(1994)).

Although the continued use of felon disenfranchisement is not viewed as a deliberate attempt by states to suppress minority voting, continuing socio-economic conditions and reified structures of systemic oppression means that historically marginalized groups are still being marginalized by the current administration of justice.

What can be done?

Many scholars and advocates believe that adopting a different approach to felon disenfranchisement might less negatively impact minority populations and better help felons feel part of American society again (Demlietner(1999) Karlan(2004) Uggen and Manza(2006)). One model often considered is the German model. In contrast to the US model, which leaves much discretion to the states, the German model of disenfranchisement sets national standards that limit disenfranchisement to specifically enumerated offenses (Demleitner (1999)). In the German model, loss of voting rights are impermanent and often short-lived. Scholars feel that the German approach in the U.S. would minimize the loss of voting rights in minority populations. It would also help reintegrate ex-felons back into society by including them in one of the essential parts of American life (Demleitner (1999) Uggen and Manza(2006)).

To learn more about felon disenfranchisement, visit The Sentencing Project.

To see state by state felon disenfranchisement, view the ACLU's map.

Further Reading:

Demleitner, NV. 1999. "Continuing Payment on One's Debt to Society: The German Model of Felon Disenfranchisement as an Alternative". Minnesota Law Review 84. 753.

Harvey, A.E. 1994. "Ex-felon disenfranchisement and its influence on the black vote: the need for a second look". University of Pennsylvania Law Review 142(3). 1145-1189.

Karlan, Pamela S. 2004. "Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement". Stanford Law Review 56(5). 1147-1170.

Miles, Thomas J. 2004. "Felon Disenfranchisement and Voter Turnout". The Journal of Legal Studies 33(1). 85-129.

Preuhs, Robert R. 2001. "State Felon Disenfranchisement Policy". Social Science Quarterly 82(4). 733-748.

Uggen, Christopher and Jeff Manza. 2002. "Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States". American Sociological Association 67(6). 777-803.

Uggen, Christopher and Jeff Manza. 2006. Locked Out: Felon Disenfranchisement and American Democracy. Oxford: Oxford University Press.

For more literature on the problem with Felon disenfranchisement-check out work from The Sentencing Project here.

Election Administration

Fair elections require administrative processes that makes voting easy and gives voters confidence that their vote will count. Part of FairVote's initiative is to make sure we understand how our elections are administered and if there should be common systems reforms.

Public Interest Voting Equipment

One of the most necessary steps to guaranteeing fair elections is understanding the voting equipment used and error rates.

Voting equipment should be easy to use and ensure that every ballot cast is recorded correctly. In 2000, the Caltech-MIT Voting Technology project found that between 4-6 million votes were not counted due to poor ballot design and machine error. In 2004, the same group found that over 1.2 million votes were not counted due to similar problems. The study concluded that the reduction in error was the result of improvement in voting equipment, especially the reduction of punch card ballots and the increased use of equipment that limited the possibility of voter error. States that did not upgrade their equipment, such as California, Connecticut, Iowa, and Nebraska, experienced higher voter error in 2004.

At the same time that states are replacing punch cards and lever machines with optical scan machines or electronic voting equipment, it is necessary to make sure that the new equipment used is safe and secure. All Americans can agree that voting equipment should be designed to ensure that every vote cast is correctly counted. In light of recent elections, the need for secure and accurate voting equipment has never been more critical. In 2000, the presidential election was decided by a mere 537 votes; and in 2004, gubernatorial races in Washington and Montana were decided by less than 150 votes each.

While there is no clear evidence that voting machines have been tampered with to alter electoral results, many computer scientists agree that electronic voting machines can be programmed to produce certain results.

Reform advocates believe that one possible avenue to ensure secure digital voting is to have the government own and have full control of elections. They should own the equipment and make the source code available to the public so that the machines can be independently tested. Moreover, a voter verified paper ballot will provide a secondary check to confirm that the equipment is working correctly and provide the documentation necessary for a true audit.

Voting Equipment, Election Integrity, and Audibility

A voter verified paper ballot can be used in place of direct recording equipment (DRE's) through s Optical Scan and AutoMark-type technology that utilizes a genuine paper ballot to ensure that election results can be audited. The ideal method, to maximize security and integrity, is to have a redundant record of every vote. This means a system that has both a computerized record, or "ballot image" of each vote, as well as a paper ballot record of each individual vote (rather than merely running totals). This allows the comparison of the two records as an additional layer of security.

Optical scan machines are examples of acceptable technology. Paper ballot machines with a computerized interface may be acceptable if they generate paper ballots as the official ballots of record and print ballots that are easily readable and test well for usability.

These should be coupled with a manual audit and other protocols such as proper pre- and post-election testing, ballot accounting and secure chain of custody. All government elections should be subject to random, manual, statistical audits able to confirm election outcomes with a high level of confidence. Because Internet voting cannot achieve the standards above, it should not be used for government elections in the U.S. We recognize the right of private associations to run their election on-line if their members are willing to accept the inherent risk that comes with online voting.

Advanced voting methods, such as those using ranked-choice ballots, pose no more risk of fraud than more commonly used voting methods and do not depend on the use of electronic voting. FairVote urges jurisdictions, whether adopting advanced voting methods or not, to also institute the above recommended procedures and voter-verifiable and auditable voting technologies. We urge jurisdictions to set a new and higher standard of transparency by following the precedent of cities such as Burlington, VT and San Francisco, CA, in running ranked-ballot elections, and implement "open source ballots" by also posting the computerized record of every ballot on the Internet.

Longer term, FairVote believes that voting equipment and election administration in the United States requires a national elections commission to create minimum national election standards, and explore purchase of "public interest voting equipment" whereby the software and voting equipment is open source and publicly owned.

Non-Partisan Election Administration

Another way to increase confidence in the voting system and guarantee more fair elections is to have nonpartisan officials make decisions about election administration.

In almost every state, the secretary of state or an appointed election official administers elections. Even though these officials are responsible for executing state and federal electoral policy and setting election procedures, there are few standards to which election officials must adhere. Most election officials are law-abiding and execute laws to the best of their ability. Yet, without standards or requirements in place there is no guarantee all election administrators will act in this manner, as recent elections have demonstrated.

Secretaries of state serving as state campaign chairs create the appearance of a conflict of interest, even if none exists. In the past two election cycles, the secretaries of state in two battleground states came under intense scrutiny because of their connection with presidential campaigns. Secretaries of State Katherine Harris and J. Kenneth Blackwell served as state chairs for Bush-Cheney in 2000 and 2004, respectively. Although no one formally accused these individuals of wrongdoing, the perception of impropriety is enough to undermine the legitimacy of the electoral process.

The Democracy SOS Project

Recent presidential elections have exposed enormous problems with our voting processes. From long lines to butterfly ballots, from voter purging to voting equipment failures, it is clear that the decisions that election officials make impact the way our democracy functions, although these decisions are usually made outside the public eye.

The Democracy Secretary of State (SoS) Project aims to shine a spotlight on the role of election officials and their decisions. Through research, candidate surveys and public awareness campaigns, we seek to hold election officials accountable for their decisions, and consequently to promote fair elections.

There are a number of facets involved with the Democracy SoS Project. One of these is research—in 2008, FairVote surveyed more than 400 local election officials in 10 swing states. We issued a five-part series of reports detailing election preparedness and uniformity in Missouri, New Mexico, Colorado and Virginia. The national report includes counties with a population of over 500,000 in six additional states.

Another aspect of Democracy SoS is voter guides. Voters are inundated with information about presidential and gubernatorial candidates, but are often poorly informed about offices like Secretary of State. We publish candidate biographies, focusing on electoral reform positions and campaign promises related to elections.

Democracy SoS also includes candidate surveys. In order to better inform voters about their candidates’ stances, each candidate will be asked to complete a survey covering a range of issues, including voter education, election planning and election integrity. Download a sample candidate survey.

One of the most important parts of Democracy SoS is its coalition partners; FairVote works with a range of local, state and national organizations to promote democracy. National partners include: Common Cause, Advancement Project and Demos.

Issues in focus during the 2008 election cycle:

Machine & Voting Booth Allocation: Long lines have been a persistent problem for voters, particularly at precincts with high-density populations and inadequate voting machines. Each state should issue guidelines to county election officials for allocating machines and booths to make Election Day more efficient. We will publish county-by-county machine and voting booth allocation procedures before Election Day to inform the public and encourage officials to prepare for high turnout.
Ballot Design: Everyone remembers the infamous “butterfly ballots” that caused voters problems in Florida in the 2000 presidential election. We will collect and publish county-by-county ballot designs or ballot design guidelines so voters know what the ballot will look like before they walk into their polling place.
College Polling Locations: College students often have a difficult time voting because they have to travel relatively far to their polling location. We will publish state-by-state information about which campuses have polling place locations and which do not (but should).
Provisional Ballot Rules: Congress passed the Help America Vote Act of 2002 (HAVA) to ensure every vote was counted by allowing voters to cast provisional ballots if their name did not appear on the voter rolls or if they voted in the wrong precinct. However, HAVA leaves counting provisional ballots up to the discretion of the states. To achieve national uniformity in provisional ballot counting, we will publish state guidelines for counting provisional ballots before Election Day.