Sunday, January 1, 2012

Looking at the History of Voting Rights and Election Laws

I’d like to thank Mary, Karen, Dan, and Tomiko for the opportunity to guest-blog this month. When Mary first asked me if I wanted to guest-blog, I thought about possible topics that I might talk about. Events in the last few weeks have made my choice an easy one. When the Department of Justice refused to pre-clear South Carolina’s voter ID law, it capped months of significant legal and political change in the realm of voting rights and election law matters. (Under Section Five of the Voting Rights Act of 1965, South Carolina is one of a number of states that have to submit ANY changes in voting laws, rules or procedures for certification, whether by the Justice Department or by a three-judge panel of the U.S. District Court for the District of Columbia, that the legal change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” More on this in a future blog.)

From the Texas Redistricting case on SCOTUS’s January 9 docket to Florida’s ongoing litigation over its election law “reforms” to the Montana Supreme Court’s rejection of Citizen United’s holding last Friday that independent spending by corporations do NOT corrupt the electoral process (the Montana court’s response is that, as a factual matter, such spending has been corrupting in the past), election law and voting rights matters are in the news. These examples are but the tip of a very large iceberg – and one that I have written about extensively during the last decade.
One recurring theme in my writing on election law and voting rights is the dysfunction of the American electoral system. There are structural flaws in the mechanics of how we organize, regulate, and run elections in this country – flaws that undermine the democratic process. Representative democracy demands that the will of the people be communicated to those who run our government, or we don’t have real democracy. For better or worse, voting is the method that we have chosen for determining this will. When the voting process breaks down, democracy itself is at risk.
Our electoral system is broken. It has been broken for a long time. Congress, the President, and the Supreme Court have been working at correcting these flaws for decades – in fact, for most of the twentieth century and all of the twenty-first century to date. Yet despite these efforts (and, sometimes, because of these efforts) serious problems remain. In fact, as recent events show, in many ways things have been getting worse over time.
So my goal this month is to do the historian’s job and try to give context to these current debates over election rules, procedures, and laws, and the right to vote.