Barriers to Voting
Stricter voting laws are problematic because they will make it harder for low income and marginalized voters to obtain a state ID card and birth certificates.
As of December 2016 : Michigan voters without photo identification could still cast a ballot under an affidavit, but they would have to bring an ID to their local clerk’s office within 10 days of an election in order for their vote to count.
The Voting Rights Act
Most of us can remember the Civil Rights Act of 1964 from U.S history classes. But what some forget is that there was another notable law that was passed the year afterwards. This was the Voting Rights Act of 1965. It expanded the number of African-Americans who could vote and put an end to the discriminatory practices based on race and color at polling stations.
What Happened Before this Law Came Into Effect?
Before this law was enacted, state governments, particularly in the South, used brazenly, prejudiced obstacles for Black men to meet when they came to exercise their right to vote, as expressed in the 15th Amendment of the Constitution. Some of these prerequisites included literacy tests, poll taxes, and proving that your ancestors were free (known as the “grandfather clause”). These requirements drastically reduced the black voter rolls. In states like Louisiana which instituted a “grandfather clause” in 1896 the percentage of African Americans who could vote was reduced from 44.8% to an astonishing 4 percent in a matter of four years. By 1940, other states would follow a similar path to the point that only 3 percent of eligible African Americans in the South were allowed to vote.
How Did It Get Passed?
These harsh measures helped spur the Civil Rights Movement and push people to march, protest, and resist. Because of their activism and the signing of the legislation into law by President Lyndon B. Johnson, the Voting Rights Act became official U.S. policy and led to the registration of 250,000 Black voters by the end of 1965 alone.
Throughout the decades since, Congress and the President have taken upon themselves to reaffirm the statues of this law, particularly section 4 and section 5.
What Is Section 4 and 5 of the Voting Rights Act?
Section 4 targets specific areas around the country where there has been a history of racial discrimination in voting and requires these same areas to adhere to the newly-created law. The severity of these remedies would range based on how much improvement an area needed. The most basic of these would be a suspension of all tests and devices like literacy tests.
Section 5 would guarantee that all new election and voting practices in these areas are approved by the Attorney General or the United States District Court for the District of Columbia. To receive this approval and be implemented, the new changes would have to have no discriminatory purpose or effect whatsoever.
What is the Status of These Sections Today?
In 2013, the court case of Shelby County v. Holder placed the enforcement of these sections under threat. The Court stated that “it is unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act.” This means that all new election laws and practices were no longer required to have Attorney General or Court approval, even if these counties/cities have had a history of discrimination. Thus making Section 5 largely ineffective and unable to protect the voting rights of the citizens it was sworn to protect.
What Have Been the Consequences of this Decision?
As soon as Section 4b was considered unconstitutional, states all over the country began to use new methods that disparage voting such as voter ID laws, the closing down of polling stations in primarily Black neighborhoods, and English-only elections. This has had a disastrous effect on minority people’s ability to vote and officially made 2016 the first election without the full protection of the Voting Rights Act in recent memory.
Where Do We Go From Here?
Thankfully, there is a light at the end of the tunnel. After Section 4b was made unconstitutional, the Chief Justice John Roberts recommended Congress pass legislation to make up for this gap. Two bipartisan bills have been introduced – the Voting Rights Amendment Act and the Voting Rights Advancement Act – and are still waiting to be passed. All it would take is for the people to rise up launch a grassroots movement to remind our Congressmen and Congresswomen that our democracy matters and that we will not submit to these new alterations in voting law. Whether this be through mass protests like the Women’s March, sit-ins at legislator’s offices, or even voting them out of office if they refuse to promise to restore the Voting Rights Act.
In the Gilded Age of U.S. history, money and corruption was the norm in politics. Even the party machines that were supposed to represent the people’s wishes were overhauled by the interests of those with wealth and power like “Boss” Tweed in the late nineteenth century. These problems would be washed away with the introduction of “trust-busting” and new campaign finance laws that made it more difficult for the wealthy to buy off corrupt politicians in the Progressive Era. But with the Supreme Court decision of Citizens United v. Federal Election Commission (2010), the political environment has suddenly shifted back towards the Gilded Age all over again.
What is Citizens United?
Citizens United is a notorious Supreme Court case that argued corporations and nonprofit entities had the right to spend unlimited amounts of money into the political process. Otherwise, restricting their option to do so would be violating their First Amendment rights. As a result, the floodgates were opened up with the help of Super PACs.
What are Super PACs?
Super PACs are different from regular PACs in that they are not required to disclose the amount of money they receive from corporations and nonprofits. This has created scenarios where candidates can use their regular PAC to make it appear like they aren’t bought off, but then establish a Super PAC for wealthy donors to contribute to.
For example, in the 2016 Presidential election, prospective Republican candidate Jeb Bush formed two Right to Rise PACs: a regular one and a Super PAC. These two PACs would coincidentally have the same names, the same logos, and even the same lawyer heading them. And when he made a video announcement about this PAC, he would consistently reference the regular PAC without ever mentioning the alternative. This is just one example of the deceit that is being utilized in the political arena by candidates running for important positions.
What Reforms Can be Implemented?
What makes this issue so complicated and complex is the lack of a pragmatic solution. But there are three general options that can be done to counter this if under the right conditions:
States can issue their own public financing system that would create an incentive for candidates to take money directly from the people themselves rather than the hundreds of thousands of dollars they would receive from corporations and nonprofits. And there quite a few versions of that that could be potentially done. For example, in a publicly funded matching system, if an individual donated money, the state government would donate the same amount of money to a candidate’s campaign so as to make them less likely to go to corporations and organizations for large sums of money. An unintended consequence of this system, though, is that this will only encourage corporations and organizations to donate ever larger sums of money than they already have.
To over the heads of our Supreme Court Justices, some have suggested a movement to pass a constitutional amendment. This amendment would clearly express that there must be limits on the amount of money a candidate can spend and receive, as well as resisting the idea that corporations are artificial individuals. But this would require 38 state governments to approve of the measure. Something practically impossible at the moment where the only state legislatures that have said it would support the measure are Vermont and California.
Hence, the other solution. Elect a President who would appoint a Supreme Court Justice that is in favor of reversing Citizens United and its’ ramifications. In fact, many of these campaign finance cases have been decided by a narrow 5-4 margin throughout the decades. This is best shown in the figure below by Vox. So, if one of these five justices was to be replaced with one who does not approve of Citizens United, we would be poised to reverse the decision and any other previous decision that negatively affected a citizen’s ability to be heard in the political process.
The Electoral College
In each presidential election year, a group of candidates for elector is nominated by political parties and other groupings in each state, usually at a state party convention, or by the party state committee. It is these elector-candidates, rather than the presidential and vice presidential nominees, for whom the people vote in the November election, which is held on Tuesday after the first Monday in November. In most states, voters cast a single vote for the slate of electors pledged to the party presidential and vice presidential candidates of their choice. The slate winning the most popular votes is elected; this is known as the winner-take-all, or general ticket, system.
Each state has a number of electors in the electoral college proportionate to its population: the sum of its number of senators (always two) and representatives in the House.
Technically, Americans on election day cast votes for electors, not the candidates themselves, although in most cases the electors’ names are not on the ballot.
California, the most populous state, has 55 electoral votes. A few small states and the District of Columbia have only three.
Today, the electoral college has 538 electors, and in all but two states, Maine and Nebraska, all of the state’s electors are awarded to the winner of the popular vote within that state.
The problem with the Electoral College
Although the electoral college has been an established institution for years, it is an incredibly undemocratic system. This is because a president can be elected despite their opponent’s receiving a larger popular vote. This was seen in our past 2016 Presidential election when Democratic candidate Hillary Clinton won the popular vote by more than 2.6 million votes but still lost the presidential election to Trump as he had won enough electoral votes. So in our current system, it does not matter if you won the popular vote because you can only win the presidency through the electoral college. As explained above, this is very undemocratic because the electoral college allocates delegates in a winner-take-all fashion. So if 49% of voters voted for one candidate in a particular state, their votes would get zero representation because this rule gives all the delegates to the other candidate who received 51% (or more) of the votes.
One of the arguments made in favor of the electoral college is that it serves to emphasize small states and make them more important to the candidates. This might sound beneficial in theory, but it undermines simple democratic ideology. If electoral votes were distributed proportionately, Wyoming would only have one vote based on its low population. But instead, Wyoming voter’s choice is inflated to three times more than it should be.
The Electoral College was originally created to serve as a barrier between the people and the Government, to prevent a mistake from the constituents they hardly trusted. Today, however, Americans are much more educated. Increased literacy and the engulfing nature of social media has made it extremely easy to be an informed voter.
After witnessing President Donald Trump’s stunning victory in the 2016 presidential election, it is very clear that the electoral college as an institution should be abolished. Although, this would not be an easy task. Since it is included in our Constitution, getting rid of it would require a constitutional amendment. That means receiving a two-thirds vote in both the House and the Senate and the ratification of three-fourths (38) of the 50 states. Since the Democrats lost the presidency, the Senate, and the House, a constitutional amendment to abolish the electoral college is not likely to be proposed in a GOP-controlled Congress. Given a situation where it is passed in Congress, it is highly unlikely that 38 states would ratify it. Red states are likely to not support the idea as the electoral college has been perceived as beneficial for the Republican Party. There also may not be much support from swing states either as it would mean losing their important position in the presidential campaign.
The only option that we as a community have in order to work towards eliminating this system is to launch a national campaign that makes the case that this institution isn’t right and goes against all of our democratic principles. We must inform voters that the last two elections in 16 years have gone to the candidate with fewer votes. This just isn’t what a true democracy should look like.
For a more visual explanation, watch the video below.
The Incarcerated/Returning Citizen Population and Voting Rights
We know about how dismally low of a turnout rate there is when it comes to elections, especially midterms and local elections. But why is it so low? A portion of that reason has to do with the 6.1 million returning citizens and/or incarcerated citizens who have been denied their right to vote in their respective state. Based on a state’s laws, significant parts of the electorate can be wiped off the voting rolls like the grandfather clauses did for African Americans in the late nineteenth century and early twentieth century.
For example, 10.43% of Florida’s eligible voters are disenfranchised for life due to harsh laws on felons when they enter the penitentiary system and even after they leave it. In terms of population numbers, that is nearly 1.7 million people. A utterly shocking statistic when taking into consideration how large of a swing state Florida is. Anyone remember the 2000 Presidential Election? Only two other states have lifetime disenfranchisement policies for all returning citizens: Iowa and Kentucky. But even though the other 47 states don’t have this specific policy, they do have some laws that make it difficult for incarcerated citizens to be treated like any other non-incarcerated citizen. For instance, the state of Michigan makes it illegal for someone in prison to vote. And another law in the Michigan Freedom of Information Act declares that:
It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act.
This creates a nation of returning citizens and incarcerated citizens who are unable to vote and participate in the democratic process.
Other states have tried to resolve this.
In 2016, Virginia Governor Terry McAuliffe issued an executive order that gave back the right to vote to 200,000 returning citizens. Moves like these are a way to restore these citizens to a first-class status like everyone else.
Whenever an American votes for their federal, state, or local representatives, they vote in a certain electoral district. Their district is a specific geographic space, and every registered voter within the lines can only vote in that geo-political boundary.
But who decides where the lines between these districts should go?
In Michigan, the state legislature decides–they make the law that decides the district’s boundaries.
When our country was still small and limited to a few states, electoral districts generally just followed the shape of city or town limits. As the U.S. population increased rapidly over time, the number of people each politician represented increased.
For some parts of government, this didn’t matter–many states have Senates modeled after the U.S. Senate. In the U.S. Senate, each state gets two representatives regardless of their population. States whose senate included one representative from each county didn’t care so much whether each state senator represented a similar number of people or not. For other parts, like the federal and states’ House of Representatives, the growing and changing population left citizens with unequal representation.
In the U.S., most elections use a “winner take all” system, where the politician with the most votes wins and they’re supposed to represent all of the people in their district–including the people who didn’t want that politician to represent them. As the populations within each district changed, some districts included way more people than others. In the “winner take all” voting system of the U.S., that meant that in districts with a lot of people there were way more citizens who didn’t vote for the person representing them than in districts with smaller numbers of people (and thus smaller numbers of people who didn’t vote for the person representing them). For example, according to professor Justin Levitt from the Loyola Law School, in the 1960s Los Angeles County had 422 times as many people as California’s smallest district, but because each district elected one senator the people in that smallest district got to have 422 times as much representation on the Senate than LA County citizens.
Citizens needed a better, more fair chance at representation. Federal, state, and local governments started to decrease the number of people each politician represented by increasing the total number of politicians, and by re-draw the boundaries that decided which people a politician represented. Now, these lines are re-drawn every 10 years, after the U.S. Census data is available.
So where does gerrymandering fit into this redistricting?
Gerrymandering happens when districts are drawn so that one political party has an unfair advantage over others. Instead of using the census data to draw fair boundaries, the party in power uses the data to manipulate the districts so that they includes more people who vote for their party. This makes it almost impossible for people who disagree with the party in power to ever win in an election!
When a party “gerrymanders” electoral districts, they ignore federal and state guidelines for redistricting.
The federal government (specifically the U.S. Constitution) specifies that each electoral district within a specific jurisdiction needs to have about the same number of people.
Since there are electoral districts for several levels of government (districts for electing people to U.S. Congress, districts for electing people to the State House of Representatives, districts for electing people to a city council) each set of districts might include different numbers of people, but within a single level of government the electoral districts must be roughly equal in number of people.
Congressional Districts (the ones that elect people to the federal government) must have as close to an equal population as possible according to the Supreme Court in Wesberry v Sanders.
This is the strictest rule for redistricting.
State and local legislative districts (the ones that elect people to the state and local government) must be “substantially” equal according to the Supreme Court in Reynolds v Sims.
A Supreme Court Case (Brown v Thomson) pointed out that if large and small districts are more than 10% apart in population starts to look suspicious.
Even if the districts have equal numbers of people, they aren’t necessarily fair. Gerrymandering also includes drawing lines so that people of color have less of a say in elections.
Two strategies are used to do this: cracking and packing.
Cracking happens when people of color in one area are separated into a lot of other districts so that there are just a few people of color in each district and they have no power as a group.
Packing happens when people of color are all put into a few voting districts that are almost entirely people of color so that those people of color can’t have voting power in other districts.
You can see a visual example of this process below. Imagine this is a city. The rectangles under “Disproportionate Outcomes” represent ways electoral district lines could be drawn in the city.
On the left you can see that the yellow precincts have been “packed”.
Most of the yellow precincts were put into two voting districts so that they couldn’t have a say in the other three districts.
Even though only 40% of the precincts are Green, they were able to get 60% of the vote because they drew the lines unfairly.
North Carolina’s redistricting was so bad that federal courts deemed it unconstitutional. Despite this ruling they allowed North Carolina to keep their unconstitutionally racist, voter suppressing districts for the 2016 election that allowed Trump a victory.
But how does a court decide whether redistricting is bad enough to be unconstitutional?
The Voting Rights Act of 1965 included rules about gerrymandering.
Section 2 of the VRA prohibits voting practices that discriminate based on race, color, or membership to a language minority group. Racialized gerrymandering is illegal under this law.
The VRA applies whether or not the gerrymandering was intended to discriminate along racial lines. It doesn’t matter if the lawmakers say they didn’t intend for their redistricting to discriminate, the impact matters.
There are three ways to test whether electoral districts have been drawn in a way that violates Section 2 of the Voting Rights Act. This three-step process was made during the Supreme Court case Thomburg v Gingles to help determine whether a group has been discriminated against. They’re called “Gingles” conditions.
Compactness: Is the population of people of color concentrated in one “compact” area with relatively regular boundaries so that district lines could be drawn around the population and that district would be mostly people of color.
Does most of the population in question usually vote for the same type of candidate?
“Type of candidate” doesn’t mean democrat or republican, but the type of democrat or type of republican
If the answer is yes, the next question must be asked.
Do voters around this population of people of color usually vote for a “type of candidate” different than the one preferred by the population in question.
If these “Gingles” conditions are met, then courts can consider the situation to determine if it’s a violation of the Voting Rights Act.
Section 2 of the Voting Rights Act does not, however, guarantee voting proportionality. Voting proportionality is when the percentage of minority voters in a total population matches the percentage of districts minority voters could actually elect a candidate they want. If 20% of voters in a state are people of color, and 20% of the districts can already be elected by them, the courts are less likely to say the Voting Rights Act has been violated by gerrymandering.
The Supreme Court has decided it’s okay to consider race when drawing electoral district lines, but without a compelling (court approved) reason, race cannot be the main reason for drawing the lines a certain way.
Gerrymandering is, unfortunately, a huge problem in Michigan.
Every 10 years, after the census data is released, the state congress redraws the lines (and the Governor can approve or veto them). A State House of Representatives committee and a State Senate committee are responsible for this process. Unfortunately, if one party has a majority in the House, the Senate, and the Governor’s position, that party has an unfair advantage when the time for redistricting happens.
The last time districts were drawn in Michigan was in 2011, when the Republican party controlled the House, Senate, and Governor’s office.
Learn more about gerrymandering!
If visuals are helpful for you, check out the videos on gerrymandering below. If you prefer learning-by-doing, try these games to learn more:
If you’d like to learn more about gerrymandering in Michigan, and how it impacted the 2016 presidential election, and new ways to measure gerrymandering (or if you want to play around with some maps that explain gerrymandering in Michigan) check out this article here http://www.bridgemi.com/public-sector/gerrymandering-michigan-among-nations-worst-new-test-claims .
In 2018, Michigan will be voting on a ballot initiative to combat gerrymandering in the state. If you’d like to learn more about the initiative, and about gerrymandering in the state of Michigan, check out this link here http://www.votersnotpoliticians.com/michigangerrymandering .