//  11/27/18  //  In-Depth Analysis

In collaboration with Election Law BlogTake Care is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

As the all-star lineup of other commentators in this magnificent mini-symposium have mentioned, the prospects for federal voting rights legislation to move in a divided Congress in this political moment are … slim.  Really, really, really slim.  There should be some room for action in a few states (which is where much of this work should really be anyway), but in Congress, trench warfare seems more likely than meaningful compromise — even meaningful grand compromise.  So while I’d be delighted to be wrong, I agree with Rick that I’m really joining a series of posts about a messaging bill.

In most arenas, a messaging bill comes with few legal implications.  It’s an expression of priorities that amounts to little more than a holiday wish list for things we don’t currently have, and a minimal precommitment by legislators to potential future action when they have the authority to assume Santa’s mantle. 

When rights are concerned, though, the calculation is different.  It can be tempting to see a messaging bill as a statement of future activity that also connotes present absence – on this view, the fact that X is articulated in a bill means that the authors believe X doesn’t already exist.  The most pervasive example is likely the fight over the meaning of ENDA and the Equality Act: advocates have spilled untold amounts of ink arguing whether the persistent attempt to pass legislation explicitly confirming sexual orientation and gender identity protections against discrimination has any bearing on how to construe existing statutory, and even constitutional, protections.  Courts have been properly wary of the interpretive import of legislation that has not cleared the finish line – but that wariness has not always proved preclusive. 

Some aspects of a bill on voting rights will clearly tread new ground, or correct judicial opinions that have created a clear status quo.  No harm in a messaging bill on those fronts.  But other provisions may simply confirm interpretations of existing law for which there is a circuit split, or where the courts have not yet weighed in at all.  If legislation is offered when realpolitik indicates that it will sit stagnant, it may behoove drafters to specify which parts of the bill are intended to represent a comment on the legal status quo and which are not.

One area in which this is no concern is restoration of the Voting Rights Act.  It’s on many of the other commentators’ lists, and rightly so.  The last two years should have squeezed the last drop of life from the wrongheaded notion that we’ve become post-racial, and the last five years should have amply illustrated that existing statutory tools to address racial discrimination, while powerful, are insufficiently nimble.  We need the VRA back, in force.

Though commentators talk about the burden on state autonomy of the preclearance system, its most profound power is actually in the room it allows local government to operate — even local governments that have earned national skepticism.  Preclearance does not tell state and local officials what they must do.  It tells them only what they must not do.  As long as the most troubled jurisdictions don’t make conditions worse for underrepresented minorities, their policy choices are their own.  That’s an oversight model a lot less intrusive than the alternative.

It’s also most important in truly local governance.  It’s difficult to make informed command-and-control national judgments on local decisions about where polling places should be located and how long they should be open, in the abstract: sometimes fewer, larger locations with more capacity, flexible access, and better-trained staff with language ability will be better for underserved minorities than a lot of smaller locations that aren’t up to snuff.  Sometimes not.  The same is true for city and county redistricting: there are few abstract principles that ensure the absence of discrimination in representation better than “don’t discriminate.”  And preclearance also creates a natural mechanism for notice of changes in local practice that might otherwise fly under the radar until it’s too late to seek relief.

Lisa and Travis both point out that a formula for restoring preclearance will have to navigate a hostile Supreme Court.  That’s undoubtedly true.  But one of the lessons of Shelby County is that it’s impossible to design around a Court hellbent on gutting legislative will.  The Shelby County Court invented a standard to strike down a statute that did not exist.  Good luck legislating to avoid that.  I’m not suggesting that legislators should ignore the Court: they should (indeed, must) heed the legal principles that the Court has articulated.  What I am suggesting is that it’s unlikely to be fruitful for Congress to trim its sails too much out of fear of what a hostile Court might possibly do.  We can take the Court both seriously and literally without running away from the Court’s shadow as well.

While the VRA is open for business, Congress should clarify that “no” means “no.”  A series of appellate courts have construed “No voting qualification . . . shall be imposed or applied by any State” to mean “No voting qualification [except felony disenfranchisement] …”  The opinions tie themselves in knots to avoid the obvious.  But with nontrivial questions about the federal government’s power to address felony disenfranchisement that isn’t provably tied to racial discrimination, the VRA may be the best vehicle to right this longstanding problem as well.

Elsewhere in election administration, I’ve also got a federal laundry list, much like the ones others have offered.  Measures to encourage opt-out, portable voter registration and preregistration with an election-day failsafe, yes – but also smaller and simpler measures like voter registration tied to naturalization ceremonies and filing federal tax returns (the “No Taxation Without Representation Act” has a ring to it, even beyond voting rights for DC and the Territories).  Measures to encourage better access to polling places on tribal lands.  Measures to prevent purges without reliable evidence of actual ineligibility, and measures to penalize the dissemination of false “vote on Wednesday” logistical information with the intent to disenfranchise.  And though I don’t love efforts to make Election Day a federal holiday – the people who will sell you a mattress or a car or clean your hotel room or serve you food on a holiday are all working, which means the holiday tends to enhance class disparity in the election structure rather than rectify it – I support measures to encourage robust early voting periods that compensate for election-day struggles.

But those individual policies are familiar, and perhaps more innovation is in order in a messaging bill.  Congress might learn a lesson from the structure of the Voting Rights Act, even beyond its substance.  As mentioned above, the most familiar pieces of the Voting Rights Act implement a performance standard, not a design standard.  That is, those provisions define a minimum destination, but not the journey: states can take whatever paths they please as long as they don’t end up at a discriminatory endpoint.  I’ve proposed similar standards in the context of lines at polling places.  Lines are symptoms: like fevers, they’re caused by a whole bunch of different underlying conditions, varying from jurisdiction to jurisdiction.  Persistent registration problems, inadequate voting technology, inadequate staffing and training, poor resource planning, insufficient information, etc.  Many of these underlying conditions also cause disenfranchisement, even before accounting for the deterrent effect of the lines. 

Congress could, in federal elections, legislate to address each and all of the underlying conditions.  Doing so has some risks: heavy-handed requirements may be more than is necessary in some jurisdictions and less than is necessary in others, cumbersome to change, and ever-focused on fighting the last war.  Instead, it may be fruitful for Congress to think about a performance standard — no voter waits more than [X] minutes, with statutory damages as an aggregate enforcement device — and let jurisdictions develop their own democracy labs to find their way to the desired result.  It’s not impossible to envision a similar performance standard with a maximum tolerance for the proportion of rejected absentee or provisional ballots, or a standard that defines success in terms of year-over-year improvement toward that end goal.  Shifting the orientation in this way is designed to spur adequate customer service without a single national view of the means.

I am, candidly, not sure whether the same lessons apply in redistricting.  Again, there’s no shortage of individual wish-list items: elimination of the citizenship question on the decennial census at least as long as the climate remains predictably toxic, recalibrating the redistricting treatment of individuals in prison to reflect the domicile the law assigns them for most other purposes, eliminating the direct SCOTUS appeal from a three-judge tribunal that has made the Court gunshy about announcing constitutional principles in the absence of docket control.  

But beyond the individual bits and pieces, the presence of tribal partisanship in the process is responsible for an outsized amount of the problems that redistricting brings.  There are performance standards that would help address the problem, but the most effective versions require easing away from single-member districts as the exclusive mode of representation — and though I’d like to get there, I’d like to get there in a bunch of states before getting there in Congress.  That said, in this arena, the design-standard alternative to get at most of the problem is pretty straightforward: “Thou shalt not use state power to discriminate against voters based on their partisan affiliation.”  In redistricting, just like everywhere else.

I’ve got a design-standard suggestion for campaign finance regulation, too.  I agree with Rick that disclosure is currently a mess.  A lot of information is collected, but not the bits most meaningful to the consumer: we’ve got too much and not enough all at the same time.  As he suggests, there’s not much to be gained from forcing public identification of individual $200 donors, when what people want to know is who’s really calling the shots.  To serve the informational purpose, it should be sufficient to identify the top funders by name, along with the (anonymized) campaign finance structure: overall stats on the breadth and concentration of support within the relevant electorate tells you an awful lot about a campaign.  And it aligns the incentives for reporting in a salutary way: you only get to claim credit for a broad movement if you actually track the support in a broad movement.  There’s even a handy, strikingly familiar way to display the information.

Last item in a post that’s already way too long: if members of the new Congress really want to show their priorities, they should put their money — our money — where their mouths are.  We spend comparatively little on our elections, and we often get what we pay for.  Pollworkers are effectively volunteers, voting machines and tabulators are at the age of breaking down, and the local offices that run elections don’t have enough reserve to invest in the basic structural improvements they need.  Even annual budgets are a scramble, which a part of why jurisdictions feel they need to scrimp on printing and then run out of ballots.  After the election of 2000, Congress threw policy at the problem, but it also threw money.  The money was most welcome.  That money is long gone. 

“Infrastructure Week” has become a mockable meme in the Trump era.  That’s a shame: big federal plans to fund sorely needed infrastructure upgrades are actually a really good idea.  Elections are the infrastructure of infrastructure: they’re the way we decide on everything else that we want to do together, as local communities and as a country.  It’s long past time they got an Infrastructure Week of their own, with another round of serious federal funding leading the way.  If the new Congress wants to send a message with new legislation, it should make sure that bolstering the bottom line is top of the list.

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Legal Challenges, Plus The Post Office Case

11/8/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the (frivolous) legal challenges to come. They are then joined by Public Citizen's Matthew Seligman to learn what happened with all those last-minute ballots, and what might happen in ongoing litigation in the Supreme Court.

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP