Election Rejection

How the history of voting rights informs modern elections

Illustration ©Getty / wildpixel
By Molly P. Matter

We are in the midst of a tumultuous and rapidly changing time for voting rights law. In an article published in the February 2021 issue of Bar News, Tracy Flood and Christine Kuglin explored voter suppression in the 2020 election and the deep history of voter suppression in the U.S.11 Kuglin, Christine & Flood, Tracy, “A Legacy of Suppression,” Washington State Bar News (Feb. 2021). This article extends that work by exploring the recent expansion of individual state influence over voting access and, in particular, issues that face Washington state.

Why Do States Now Have Greater Influence Over Voting Rights?

To fully appreciate where we are now, it is important to know something of recent U.S. Supreme Court voting rights decisions. In 1966, the Supreme Court upheld the federal Voting Rights Act and its central feature, federal preclearance, the mechanism that placed the burden of proof on the jurisdiction, rather than the victims of alleged voter suppression, to prove that voting laws were not discriminatory. The court opined, “Congress found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits.”22 South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966). 

Congress recognized then that enforcement by the Department of Justice would never be enough. In Carolina v Katzenbach, the Supreme Court prophetically stated, “After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”33 Id.

With this decision, “perpetrators of the evil” could no longer delay justice and the burden was no longer on the victims.

No one foresaw that half a century later, 90 percent of all voting rights lawsuits would be brought by national civil legal aid organizations and private attorneys (leveraging academia), not the Department of Justice.44 This percentage is derived from data compiled using the Annual Reports of the Director of the Administrative Office of the United States Courts, Judicial Business. A single legal institution would never have enough resources to combat voter suppression.

After the Voting Rights Act was amended in 1982 to incorporate the impact and intent standard,55 The Supreme Court ruled in Mobile v. Bolden that the VRA could only be used if plaintiff voters could prove racist intent. This impossible burden spurred Congress to amend the VRA in 1982. Morgan Kousser, California Institute of Technology historian and social science professor, concludes that no voting rights cases would have been filed after Mobile v. Bolden if the VRA had not been amended to include the impact standard. The impact standard allows voters to prove vote dilution or abridgment by demonstrating how such policies, practices, and laws impact communities of color. This can be demonstrated by racially polarized voting, majority bloc voting that defeats candidates of color, and a totality of circumstances analysis that examines social factors, including historical and current discrimination. congressional districts drastically changed. After the 1990 census, for the first time in our nation’s (post-Reconstruction) history, states with a history of voting discrimination created majority-minority legislative districts to comply with the Voting Rights Act.66 See Parker, Frank R., “Shaw v. Reno: A Constitutional Setback for Minority Representation,” 28 Political Science and Politics 47 (1995); See U.S. Bureau of the Census, 1993. This resulted in a sea change of representation from historically excluded communities. The 1992 election was the most profound demographic shift in our democratic republic, resulting in a 50 percent increase in Black members of Congress and a 35 percent increase in Latino members.77 Id.

But democratic progress was undermined with a Supreme Court case that allowed white voters standing to allege they were harmed by majority-minority districts.88 See Shaw v. Reno (Shaw I), 509 U.S. 630, 657 (1993). In Shaw v. Reno, the argument by white voters in North Carolina that focusing on race (making race a predominant factor in district lines) was in and of itself a violation of the 14th Amendment, caught the Court’s attention. This injury was perceived by many in the legal community as a “phantom injury” and law review articles runneth over on the subject.99 Matter, Molly P., “The Shaw Claim: The Rise and Fall of Colorblind Jurisprudence,” Seattle Journal for Social Justice: Vol. 18: Issue 1, Article 9 (2019). Available at https://digitalcommons.law.seattleu.edu/sjsj/vol18/iss1/9.

Then in 2013, the Supreme Court dealt another blow to the federal Voting Rights Act and placed the burden back on the victims by gutting its enforcement mechanism:
federal preclearance.1010 Shelby County v. Holder, 570 U.S. 529 (2013); See http://www.brennancenter.org/our-work/analysis-opinion/7-years-gutting-voting-rights.  Preclearance required that all local and state jurisdictions that had a documented history of racially discriminatory voting practices prove to the Department of Justice that any proposed electoral change (e.g., closing of a polling site, implementation of a voter ID law, redrawing of a district map) was not rooted in discriminatory intent and would not disparately impact voters of color.1111 See Alexander Keyssar, The Right to Vote: The Contested History of the Democracy in the United States (Basic Books 2009). Even as it dismantled a key mechanism protecting access to voting, the Court noted that “voting discrimination still exists; no one doubts that.”1212 Shelby County v. Holder, supra note 10, at 536.

State Actions in a Post-Shelby County World

Immediately after the gutting of the federal Voting Rights Act, North Carolina’s General Assembly enacted a state law limiting early voting, requiring voter identification, reducing polling sites, and eliminating sites on college campuses, in minority neighborhoods, and near churches.1313 NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016). The Fourth Circuit ruled the law was enacted with racially discriminatory intent to suppress Black voters because state legislators had requested racial data on every voting provision that produced higher turnouts for Black voters and then drafted legislation to eliminate those very provisions.1414 Id. The Fourth Circuit stated the discrimination was done with “surgical precision.”1515 Id. The opinion stated, “Indeed, neither this legislature—nor, as far as we can tell, any other legislature in the Country—has ever done so much, so fast, to restrict access to the franchise.”1616 Id at 228; See also Vann R. Newkirk II, “The Battle for North Carolina: Political, social, and demographic forces in the battleground of North Carolina promise a reckoning with its Jim Crow past,” The Atlantic, Oct. 27, 2016, available at http://www.theatlantic.com/politics/archive/2016/10/the-battle-for-north-carolina/501257/.

On March 25, 2021, Georgia enacted similar legislation, SB202. The bill makes it a crime to provide food and water to voters waiting in line at polling places.1717 See http://www.nytimes.com/2021/04/02/us/politics/georgia-voting-law-annotated.html. Lawyers Committee for Civil Rights Under Law, a nonpartisan organization initiated by President John F. Kennedy, filed a lawsuit—in collaboration with the NAACP, Asian American Advancing Justice, Common Cause, and other civil legal aid organizations—alleging Georgia’s legislation targets minority voters.1818 See https://lawyerscommittee.org/georgias-sb202-is-a-culmination-of-concerted-efforts-to-suppress-the-participation-of-black-voters-and-other-voters-of-color/. This legislation came on the heels of Georgia’s influential role in the 2020 presidential election, which determined which party would control the U.S. Senate.1919 See http://www.nytimes.com/2020/11/07/us/politics/georgia-senate-runoff-explainer.html. 

Voter-suppression laws in North Carolina and Georgia were able to be enacted due to the Shelby County decision that effectively eliminated the requirement for states with a history of voter suppression to prove to the Department of Justice that their state laws would not infringe upon the rights of voters of color. Shelby County flipped the burden. For nearly a decade, the burden has fallen on the victims. The late Justice Ruth Bader Ginsburg, in her dissent in Shelby County v Holder, wrote, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”2020 Shelby County, 570 U.S. at 561 (Ginsburg, J., dissenting).

In contrast, some states have enacted legislation to protect voting rights. In the late 1980s, Joaquin Avila, former president and general counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), 1996 MacArthur Fellow, and former Seattle University School of Law professor and director of the National Voting Rights Advocacy Initiative, began developing the legal arguments and environment to carry the nation’s first state voting rights act: the California Voting Rights Act (CVRA). Foreseeing that the federal Voting Rights Act was at the mercy of the Department of Justice, which had only filed 10 percent of all voting rights cases since 1977, and subject to the views of the majority of the Supreme Court at the time of review, Professor Avila realized how our most fundamental constitutional and human rights would be guaranteed: by states themselves.

The CVRA was the blueprint for the Washington Voting Rights Act, which passed in 2018, the same month that Professor Avila died.2121 http://www.nytimes.com/2018/03/15/obituaries/joaquin-avila-advocate-of-hispanic-voting-rights-dies-at-69.html. Due to the statutory remedy of creating majority-minority single-member districts and a provision that allowed for attorney’s fees, the CVRA transformed California’s political representation by stopping vote dilution (i.e., the combination of majority-bloc voting and racially polarized voting) that prevented communities of color an equal opportunity to elect a candidate of their choice. Oregon, New York, and Colorado have followed suit in drafting state voting rights acts.

Despite Washington state’s overall effective system of mail-in voting, our state is not free of vote dilution and other forms of voting practices that disparately impact voters of color.2222 Joy Borkholder. “Latino voters have higher than average ballot signature rejection rates in Washington state,” Investigate West (Feb.15, 2021). See http://www.invw.org/2021/02/15/latino-voters-have-higher-than-average-ballot-signature-rejection-rates-in-washington-state/; http://www.aclu.org/press-releases/federal-court-rules-yakimas-voting-system-violates-voting-rights-act; http://www.aclu.org/press-releases/city-pasco-approves-consent-decree-aclu-voting-rights-lawsuit. Publicly accessible reports from the Secretary of State show that voters with Spanish surnames and voters with Asian surnames disproportionately have their ballots rejected for having an alleged mismatched signature.2323 Id.; Nina Shapiro. “Voting-rights battle in Washington state raises allegations of diluting Latino votes,” The Seattle Times (May 16, 2021). See http://www.seattletimes.com/seattle-news/politics/voting-rights-battle-in-washington-state-raises-allegations-of-diluting-latino-votes/. Mismatched signatures constituted only 29 percent of total ballot rejections in 2019 but constituted 74 percent of ballot rejections in the general 2020 election.2424 See http://www.sos.wa.gov/_assets/elections/research/2020%20annual%20elections%20report.pdf at 38.

In Yakima County, voters with Spanish surnames were 7.5 times more likely to have their ballots rejected for a mismatched signature compared to non-Spanish surnames.2525 See http://www.invw.org/2021/02/15/latino-voters-have-higher-than-average-ballot-signature-rejection-rates-in-washington-state. In Douglas County, voters with Spanish surnames were over 10 times more likely to have their ballots rejected.2626 Id.

The issue of ballot rejection due to a perceived mismatched signature received national attention during the 2020 presidential election.2727 http://www.cnn.com/2020/09/14/politics/election-2020-ballot-signature-mismatches/index.html. 

Although Washington state ranks high in electoral integrity, as demonstrated by its successful administration of mail-in ballots since 2011, some federal circuit courts have ruled that mail-in ballots are at risk for voter fraud. The Fifth Circuit recently ruled that the state’s interest in defending against voter fraud outweighs the requirement of a perfect signature match.2828 Richardson v. Hughs, 978 F.3d 220 (5th Cir. 2020). See https://assets.documentcloud.org/documents/7245123/10-19-20-Richardson-v-Texas-5th-Circuit-Opinion.pdf. However, upon a careful look, the decision cites to the likelihood of fraud with mail-in ballots due to reports of candidate campaign members tampering with individual mailboxes and intimidating elderly voters. Pointedly, these alleged causes of voter fraud are due to bad actors from candidate campaigns, not an inherent flaw in the system of mail-in elections itself. In fact, empirical evidence reveals that signature comparison disenfranchised more citizens in a single Texas general election than the number of voter fraud cases nationwide over the past 38 years.2929 Recent case: Richardson v Hughs,” Harvard Law Review Blog (November 2, 2020). See https://blog.harvardlawreview.org/recent-case-_richardson-v-hughs/.

In Washington, legislation to effectively track the issue has been introduced. Currently, under House Bill (HB) 1545 (passed in 2019),3030 http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/House/1545-S.SL.pdf#page=1. the state is required to provide public reconciliation reports on each county’s elections, including ballot rejection rates. Under proposed HB 1819, introduced in the 2019 and 2020 legislative sessions, the state would be mandated to provide more in-depth information regarding ballot rejection that could then be used to effectively target voter education and outreach.

A civil rights problem can rarely be resolved by a single legal remedy. The first step in addressing voting rights issues is directly informing and educating the communities impacted through voter education and voting rights advocacy. During the COVID-19 pandemic, Washington state served as a national leader in election integrity due to its long history of successful mail-in ballot elections. It now has the opportunity to lead on the signature mismatch issue and, as Justice Louis Brandeis once famously stated in New State Ice Co. v. Liebmann, “serve as a laboratory; (and) try novel social and economic experiments.” In doing so, Washington will become a role model for other states.

Molly P. Matter

Molly P. Matter is proprietor of Amend Law LLC, a community lawyering human rights and voting rights practice. Matter is counsel for Latinx voters in Reyes v Chilton, a voting rights claim filed in the U.S. District Court for the Eastern District of Washington regarding the racial disparity in ballot rejections in Washington state due to a perceived signature mismatch.

NOTES    

1.  Kuglin, Christine & Flood, Tracy, “A Legacy of Suppression,” Washington State Bar News (Feb. 2021).

2.  South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966).

3.  Id.

4.  This percentage is derived from data compiled using the Annual Reports of the Director of the Administrative Office of the United States Courts, Judicial Business of the United States, years 1977 to 2019. U.S. Courts, http://www.uscourts.gov/statistics-reports/analysis-reports/federal-judicial-caseload-statistics [https://perma.cc/KN3Q-HNEA].

5.  The Supreme Court ruled in Mobile v. Bolden that the VRA could only be used if plaintiff voters could prove racist intent. This impossible burden spurred Congress to amend the VRA in 1982. Morgan Kousser, California Institute of Technology historian and social science professor, concludes that no voting rights cases would have been filed after Mobile v. Bolden if the VRA had not been amended to include the impact standard. The impact standard allows voters to prove vote dilution or abridgment by demonstrating how such policies, practices, and laws impact communities of color. This can be demonstrated by racially polarized voting, majority bloc voting that defeats candidates of color, and a totality of circumstances analysis that examines social factors, including historical and current discrimination.

6.  See Parker, Frank R., “Shaw v. Reno: A Constitutional Setback for Minority Representation,” 28 Political Science and Politics 47 (1995); See U.S. Bureau of the Census, 1993.

7.  Id.

8.  See Shaw v. Reno (Shaw I), 509 U.S. 630, 657 (1993).

9.  Matter, Molly P., “The Shaw Claim: The Rise and Fall of Colorblind Jurisprudence,” Seattle Journal for Social Justice: Vol. 18: Issue 1, Article 9 (2019). Available at https://digitalcommons.law.seattleu.edu/sjsj/vol18/iss1/9.

10. Shelby County v. Holder, 570 U.S. 529 (2013); See http://www.brennancenter.org/our-work/analysis-opinion/7-years-gutting-voting-rights.

11. See Alexander Keyssar, The Right to Vote: The Contested History of the Democracy in the United States (Basic Books 2009).

12. Shelby County v. Holder, supra note 10, at 536.

13. NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016).

14. Id.

15. Id.

16. Id at 228; See also Vann R. Newkirk II, “The Battle for North Carolina: Political, social, and demographic forces in the battleground of North Carolina promise a reckoning with its Jim Crow past,” The Atlantic, Oct. 27, 2016, available at http://www.theatlantic.com/politics/archive/2016/10/the-battle-for-north-carolina/501257/.

17. See http://www.nytimes.com/2021/04/02/us/politics/georgia-voting-law-annotated.html.

18. See https://lawyerscommittee.org/georgias-sb202-is-a-culmination-of-concerted-efforts-to-suppress-the-participation-of-black-voters-and-other-voters-of-color/.

19. See http://www.nytimes.com/2020/11/07/us/politics/georgia-senate-runoff-explainer.html.

20. Shelby County, 570 U.S. at 561 (Ginsburg, J., dissenting).

21. http://www.nytimes.com/2018/03/15/obituaries/joaquin-avila-advocate-of-hispanic-voting-rights-dies-at-69.html.

22. Joy Borkholder. “Latino voters have higher than average ballot signature rejection rates in Washington state,” Investigate West (Feb.15, 2021). See http://www.invw.org/2021/02/15/latino-voters-have-higher-than-average-ballot-signature-rejection-rates-in-washington-state/; http://www.aclu.org/press-releases/federal-court-rules-yakimas-voting-system-violates-voting-rights-act; http://www.aclu.org/press-releases/city-pasco-approves-consent-decree-aclu-voting-rights-lawsuit.

23. Id.; Nina Shapiro. “Voting-rights battle in Washington state raises allegations of diluting Latino votes,” The Seattle Times (May 16, 2021). See http://www.seattletimes.com/seattle-news/politics/voting-rights-battle-in-washington-state-raises-allegations-of-diluting-latino-votes/.

24. See http://www.sos.wa.gov/_assets/elections/research/2020%20annual%20elections%20report.pdf at 38.

25. See http://www.invw.org/2021/02/15/latino-voters-have-higher-than-average-ballot-signature-rejection-rates-in-washington-state.

26. Id.

27. http://www.cnn.com/2020/09/14/politics/election-2020-ballot-signature-mismatches/index.html.

28. Richardson v. Hughs, 978 F.3d 220 (5th Cir. 2020). See https://assets.documentcloud.org/documents/7245123/10-19-20-Richardson-v-Texas-5th-Circuit-Opinion.pdf.

29. “Recent case: Richardson v Hughs,” Harvard Law Review Blog (November 2, 2020). See https://blog.harvardlawreview.org/recent-case-_richardson-v-hughs/.

30. http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/House/1545-S.SL.pdf#page=1.

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